Nawshad A.A. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **TUESDAY, THE 14[TH] DAY OF MARCH 2023 / 23RD PHALGUNA, 1944** ## **CRL.MC NO. 1253 OF 2023** **SC 731/2016 OF ADDITIONAL SESSIONS COURT-IV (CBI-II), ERNAKULAM** ## **PETITIONER/ ACCUSED NO.2 :** **NAWSHAD A.A., AGED 47 YEARS, S/O. ABDUL GAFOOR, PERMANENT RESIDENT AT PANAYIL VEEDU, MANAKODE PANGODE, THIRUVANANTHAPURAM, PIN – 695 609** ## **BY ADV R.O.MUHAMED SHEMEEM** ## **RESPONDENT/ COMPLAINANT :** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682 031 2 DEPUTY SUPERINTEND OF POLICE, DYSP OFFICE, KARUNAGAPALLY, KOLLAM DISTRICT, PIN – 690 544** **BY SMT.SREEJA V., PUBLIC PROSECUTOR** ## **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON** **14.03.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRL.MC NO. 1253 OF 2023** 2 ## **BECHU KURIAN THOMAS, J.** ## **-------------------------------Crl.M.C.No.1253 of 2023** **---------------------------------** Dated this the 14[th] day of March, 2023 ## **ORDER** For the last 31 years, petitioner has been facing a criminal proceeding though the trial against him has still not taken place. Petitioner has invoked the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 to quash the proceedings. The sole reason now canvassed is that most of the accused who stood on the same footing as the petitioner have been acquitted after due trial and hence the benefit of the said acquittal ought to be extended to the petitioner also. 2. Petitioner is facing indictment for the offences under Section 3(1) of the Arms Act, 1959, Section 3 of the Explosive Substances Act, 1908 and Section 10 of the Unlawful Activities (Prevention) Act, 1967 on the basis of an FIR registered on 13.12.1992 in Crime No.221/1992 of Sasthamcottah Police Station. 3. Prosecution alleged that on 10.12.1992, the Islamic Seva Sangh (ISS) was declared as an unlawful association and thereafter on 13.12.1992, in the building belonging to the 18[th] accused, a secret meeting of the association was convened by accused 2 to 17 by indulging in unlawful activities and the accused possessed country made revolver **CRL.MC NO. 1253 OF 2023** 3 and bullets without any licence so as to endanger the life of persons and thereby committed the offences alleged. After an investigation that spread over 5 years, the final report was filed which was taken cognizance as C.C.No.237/1997 on the files of the Judicial First Class Magistrate's Court, Sasthamcotta. On appearance of accused, the case was committed to the Court of Sessions wherein it was numbered as S.C.No.450/2009 on the files of the Additional Sessions Court-IV, Ernakulam. 4. After detailed trial, the learned Sessions Judge came to the conclusion that accused 3, 4, 7, 15, 17 and 18 are entitled to be acquitted given the benefit of doubt that accrues in their favour. The case against accused 1, 2, 5 and 8 were directed to be split up and tried separately. 5. Sri.R.O.Muhamed Shemeem, the learned counsel contended that accused 2 to 17 stand on the same footing and therefore the acquittal of most of the accused by Annexure A3 judgment dated 31.08.2016 must enure to his favour also. In support of his contentions, the judgment was read in extenso by the learned counsel and canvassed the proposition that the very substratum of the prosecution case as against petitioner has eroded and therefore the prosecution against the petitioner ought to be quashed. 6. Smt.P.Sreeja, the learned Public Prosecutor, on the other hand contended that the prosecution relates to a case that had rocked the State and therefore the proceedings ought not to be quashed. It was **CRL.MC NO. 1253 OF 2023** 4 further submitted that the acquittal of those accused who have already been tried was based on the evidence adduced in that trial and therefore the flaws in the prosecution evidence can even be remedied in a subsequent trial. According to the learned Public Prosecutor, merely because in one trial the prosecution failed to prove the case against the accused therein does not _ipso facto_ give rise to any presumption that in a trial against the other accused, the prosecution will not be able to adduce sufficient evidence to prove the guilt of the accused. 7. I have considered the rival contentions and have perused Annexure A3 judgment. Certain significant findings in the aforesaid judgment goes to the very basis of prosecution case. The learned Sessions Judge had in paragraph 14 of the judgment concluded that the prosecution had miserably failed to convince the court about the convening of any meeting by the accused. After criticizing PW5 and PW6, the learned Sessions Judge held that there is a total lack of evidence to prove that the 16 persons inside a room was carrying on any discussion, much less a discussion about the activities and future actions of the ISS. In fact, the court further found that there was no evidence to support the prosecution case of convening a meeting of the ISS by 16 persons. The court also went on to find that there was no attempt by the prosecution to even conduct a proper search or seal and secure the premises so that none could have access to the property till completion of the investigation. The court also criticized the investigation on the failure to **CRL.MC NO. 1253 OF 2023** 5 trace out the commission of any unlawful activity by the persons arrested either by words spoken or written or by signs or by any physical representation, disrupting the sovereignty and integrity of the country. It was further found by the learned Sessions Judge that neither was there any evidence to prove the ownership or occupation of the building nor was there any evidence collected by the prosecution to show that any of the accused had knowledge about the keeping of MO1 revolver or cartridges. Even as regards the possession of gun powder, the learned Sessions Judge concluded that there was a total lack of any legal evidence to show that the accused kept it under their possession with the intention of endangering life. 8. Some of the crucial findings arrived at by the learned Sessions Judge are extracted below :- _In paragraph 40. “But at the outset I may say that there was miserable failure on the part of both PW5 and PW6 to convince the court about the convening of any meeting. Just because of the fact that inside the room some persons were sitting and on seeing the police they stood up in a perplexed mood, one cannot jump to a conclusion that they were actually holding a meeting”._ _'In paragraph 46. “Thus, I repeat that the evidence collected by the prosecution in this case is far short of attracting the second limb of Section 10 of UAP Act as it stood in 1992 with respect to the convening meeting of an unlawful association.”_ _In paragraph 53. “Absolutely no evidence has been collected by the prosecution to the effect that any of these_ **CRL.MC NO. 1253 OF 2023** 6 _accused had any knowledge about the keeping of MO1 revolver, MO2 series and MO3 cartridge under the said pillow.”_ 9. On a reading of the above conclusions in the judgment of acquittal of accused 3, 4, 7, 15, 17 and 18, it is evident that the very edifice on which the prosecution built its case against accused 2 to 17 had eroded. All those accused stood trial on identical allegations. Petitioner falls within one of the 16 persons mentioned in the judgment. Therefore, these findings have a bearing on the culpability of the petitioner also. 10. In this context, it is appropriate to notice that the petitioner is presently aged 47 and he would have been only 16-17 years at the time of the alleged incident. The sword of prosecution has been dangling over his head for the last 31 years. This is undoubtedly a traumatic experience for the petitioner and is a violation of his fundamental right to speedy trial. 11. Since the substratum of the prosecution case is apparently lost by virtue of the judgment of acquittal of the co-accused in SC.No.450/2009 on the files of the Additional Sessions Court-IV, Ernakulam, petitioner is certainly entitled to seek the benefit of such judgment. 12. On an appreciation of the role attributed to each accused, it is evident that petitioner and accused 3 to 17 are attributed the same role. Therefore all of them stand on similar footing. **CRL.MC NO. 1253 OF 2023** 7 ## 13. In the decision in _**Moosa v. Sub Inspector of Police [2006**_ _**(1) KLT 552]**_ , this Court has delineated the circumstances when the benefit of acquittal of a co-accused can be extended to other accused. Petitioner's case falls within those category of cases especially in view of the judgment in _**Vipin and Another v. State of Kerala and Others [(2013) 3 KLJ 1]**_ . The decision of the Supreme Court in _**Kaushal Verma and Others v. State of Chhattisgarh [(2021) 2 SCC 665]**_ is also relevant in this context. 14. When the case of the petitioner is appreciated, in the light of the principles mentioned above, and in the light of the conclusions arrived at by the learned Sessions Judge, while acquitting the co-accused, this Court is satisfied that the continuance of the prosecution against the petitioner in SC.No.731/2016 on the files of the Additional Sessions Court-IV, Ernakulam is an abuse of the process of the court. Therefore, all further proceedings against the petitioner in S.C.No.731/2016 on the files of the Additional Sessions Court - IV (CBI-II), Ernakulam are quashed. The Crl.M.C.is allowed as above. Sd/- **BECHU KURIAN THOMAS, JUDGE** RKM **CRL.MC NO. 1253 OF 2023** 8 ## **APPENDIX OF CRL.MC 1253/2023** ## **PETITIONER'S ANNEXURES :** **Annexure 1 CERTIFIED COPY OF THE FIR IN CRIME NO 221 OF 92 OF SHASTHAMKOTTA POLICE STATION. Annexure 2 CERTIFIED COPY OF CHARGE SHEET NO.49/94 DATED 30.03.1994 IN SC NO. 731 OF 2016 PENDING BEFORE THE ADDITIONAL DISTRICT AND SESSION COURT -IV, ERNAKULAM. Annexure 3 CERTIFIED COPY OF THE JUDGMENT DATED 31.08.2016 IN SC NO. 450 OF 2009 OF ADDITIONAL DISTRICT AND SESSIONS COURT (CBI-II) - IV, ERNAKULAM**