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High Court of KeralaSingle JudgeQuashed

Niyas and Japu @ Jaffer v. State of Kerala

Case / Petition Number:Crl.MC.No. 2717 of 2016

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Raja Vijayaraghavan V.
Judgment Date
2016-05-27
Court Decision / Holding
This criminal miscellaneous case is allowed. All further proceedings against the petitioners herein now pending as S.C. No.486 of 2015 on the file of the Assistant Sessions Court-I, Kasaragod shall stand quashed, by invoking the inherent powers of this Court under Section 482 of the Code of Criminal Procedure.
Final Disposition
Quashed

Parties to the Case

Appellants / Petitioners

  • Niyas
  • JAPU @ JAFFER

Respondents

  • State of Kerala, represented by Public Prosecutor, High Court of Kerala, Ernakulam-682 031, (Crime 431/2010 of Kasaragod Police Station, Kasaragod District)

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri S. Rajeev
  • • Sri K. K. DheerendraKrisnan
  • • Sri V. Vinay

Counsels for Respondents

  • • Public Prosecutor Sri Rajesh Vijayan

Case Synopsis & Summary

This Kerala High Court criminal miscellaneous case under Section 482 CrPC concerns quashing proceedings in S.C. No. 486 of 2015, Kasaragod. Accused Nos. 1 and 2 (Niyas and Japu alias Jaffer) challenge the continuation of proceedings following the police final report in Crime No. 431/2010 and a Sessions Court judgment acquitting several co-accused in Annexure-II (judgment dated 07.11.2015). The Sessions Court had split the case and, in Annexure-II, acquitted accused Nos. 1-3, 5, 7, 9, 10 for lack of credible evidence; The petitioner asserts that the acts attributed to them (offences under Section 143, 145, 147, 148, 332, 308 r/w 149 IPC) cannot be sustained in light of the acquittals of other accused and that the substratum of the case has collapsed. Petitioners rely on Nagamalleswara Rao v State of AP to support that the substratum matters. They further argue that the alleged offences under Sections 312 and 308 IPC would not be attracted since the final report identified the acquitted co-accused as perpetrating the overt acts. They rely on Moosa v. Sub Inspector of Police, Ashraf Kancheriyil v. State of Kerala and Abbas v. State of Kerala to contend that when substratum is destroyed, continuing the prosecution would be futile, and invoke the inherent powers of the High Court under Section 482 CrPC to quash. The Public Prosecutor counters only by noting that petitioners have no criminal antecedents. After considering Annexures I and II, the court concludes the substratum was destroyed and thus quashes the proceedings, invoking its inherent power under 482 CrPC.

Provisions of Law Cited

Section 482 of the Code of Criminal Procedure (CrPC)Sections 143, 145, 147, 148, 332, 308 r/w Section 149 IPCSection 235 CrPC

Legal Doctrines & Maxims

  • Substratum of the case doctrine
  • Inherent powers of the High Court under Section 482 CrPC
  • Co-accused acquittal does not automatically bar trial

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argue that the substratum of the case has been destroyed by the acquittal of co-accused (Annexure-II). They rely on Nagamalleswara Rao v State of AP (1999 (2) SCC 532) to contend that where material facts rely on the acquitted co-accused, further proceedings need not continue. They contend that offences under Sections 143, 147, 148 and 149 IPC fall by virtue of the acquittals; that offences under Sections 312 and 308 IPC would not be attracted since the final report identified the acquitted co-accused as the perpetrators. They rely on Moosa v. Sub Inspector of Police (2006 (1) KLT 552), Ashraf Kancheriyil v. State of Kerala (2011 (2) KHC 812) and Abbas v. State of Kerala (2013 (2) KLT 976) to argue that continued prosecution would serve no purpose if the substratum is destroyed, and invoke the inherent powers under Section 482 CrPC to quash. The court proceeds to consider these contentions and the annexures.

Contentions of Respondents

The Public Prosecutor submits that the petitioners are not persons with any criminal antecedents. No further detailed opposition is recorded in the text; the State’s position rests on the lack of antecedents and the lack of necessity to continue a prosecution where substratum is argued to be destroyed.

Cited Precedents (4)

Case NameCitationTreatmentExplanation
Nagamalleswara Rao v State of AP1999 (2) SCC 532Mentioned OnlyCited by counsel to buttress the contention; not treated as binding by the Court in this decision.
Moosa v. Sub Inspector of Police2006 (1) KLT 552PositiveCourt relies on the doctrine that acquittal of co-accused does not automatically bar trial; used to justify quashing where substratum is destroyed.
Ashraf Kancheriyil v. State of Kerala2011 (2) KHC 812PositiveUsed to support substratum-destruction rationale and cessation of prosecution.
Abbas v. State of Kerala2013 (2) KLT 976PositiveUsed to reinforce that substratum destruction warrants quashing.

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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. 2717 of 2016 ()** **--------------------------SC. NO. 486/2015 OF SUB COURT-I, KASARAGOD.** **.......** ## **PETITIONERS/ACCUSED NO.4 & 6:** **----------------------------------------------------** **1. NIYAS, AGED 31 YEARS, S/O. PARA ABDULLA, PARA COLONY, ALAVIPADY, MUTTATHODY VILLAGE, KASARAGOD DISTRICT.** **2. JAPU @ JAFFER, AGED 36 YEARS, S/O. ABDUL RAHIMAN, ITI ROAD, MUTTATHODY VILLAGE, KASARAGOD DISTRICT.** **BY ADVS.SRI.S.RAJEEV, SRI.K.K.DHEERENDRAKRISHNAN, SRI.V.VINAY.** ## **RESPONDENT/STATE`:** **----------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031, (CRIME NO.431/2010 OF KASARAGOD POLICE STATION, KASARAGOD 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. 2717 of 2016** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE I CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.431/2010 OF KASARAGOD POLICE STATION. ANNEXURE II TRUE COPY OF THE JUDGMENT DATED 07.11.2015 OF THE SESSIONS COURT, KASARAGOD DIVISION IN SC.1053/2012.** **RESPONDENT'S ANNEXURES:NIL.** **//TRUE COPY//** ## **P.S. TO JUDGE** rs. **RAJA VIJAYARAGHAVAN V., J. --------------------Crl.M.C. No.2717 of 2016 -------------------------Dated this the 27th day of May, 2016 O R D E R** The instant petition is filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the “Code”) by the petitioners, who are accused Nos.1 & 2 in S.C. No. 486 of 2015 on the file of the Assistant Sessions Court-I, Kasaragod. 2. Crime No.431 of 2010 was registered by the Sub Inspector of Police, Kasaragod against the petitioners herein and two others for the offences punishable under Sections 143, 145, 147, 148, 332, 308 r/w Section 149 of the IPC. 3. After completion of the investigation, final report was laid before the jurisdictional Magistrate. The case was committed to the Court of Sessions. The petitioners failed to appear before the Court and therefore, case against them was split up. Accused No. 8 had passed away during the Crl.M.C. No.2717/2016 2 course of proceedings. As per Annexure-II judgment dated 07.11.2015, the learned Assistant Sessions Judge came to the conclusion that the prosecution had miserably failed to prove its case as against the accused who faced trial in that proceeding. It was further held that none of the prosecution witnesses had identified the accused in Court and the evidence was not credible. On that ground, accused Nos. 1 to 3, 5, 7, 9 and 10 were found not guilty and were acquitted under Section 235 of the Code. 4. The learned counsel appearing for the petitioners referring to Annexure-I final report submitted that the overt acts were all directed against the accused who has faced trial and were acquitted. It is further urged that the offence punishable under Sections 143, 147, 148 and 149 will no longer stand in view of the acquittal of the other named accused. The learned counsel relied on the judgment of the Apex Court in **Nagamalleswara Rao V State of AP** ( 1999 (2) SCC 532 ) to buttress the said contention. It is also Crl.M.C. No.2717/2016 3 submitted that in so far as the petitioners are concerned, the offence punishable under Sections 312 and 308 of the IPC also will not be attracted in the light of the specific allegation in the final report that it was the acquitted accused who had committed the overt acts. The learned counsel refers to the judgments of this Court in **Moosa v. Sub Inspector of Police (2006 (1) KLT 552)** , **Ashraf Kancheriyil v. State of Kerala (2011 (2) KHC 812)** and **Abbas v. State of Kerala (2013 (2) KLT 976)** to contend that when the substratum of the case itself is shattered, no purpose will be served in directing the petitioners to undergo the ordeal of protracted trial. 5. Heard the learned Public Prosecutor as well. The learned Public Prosecutor on instructions would submit that the petitioners are not persons with any criminal antecedents. 6. In **Moosa v. Sub Inspector of Police (2006 (1) KLT 552)** a Full Bench of this Court had occasion to hold in Crl.M.C. No.2717/2016 4 para 50 of the said Judgment 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 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. I have anxiously considered Annexure-II judgment of the learned Sessions Judge. In paragraph 19 of the Crl.M.C. No.2717/2016 5 judgment, the learned Sessions Judge has gone to the extent of observing that the evidence of witnesses are full of contradictions and no reliance can be placed on the same. As regards the question of identity, the learned Sessions Judge has came to the conclusion that none of the prosecution witnesses have identified the accused persons who were standing in the dock. Though the judgment rendered in the case of a co-accused 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 any relief to quash the proceedings and thus bar the trial itself, a case where the substratum of the case is lost is an exception to the above rule. 10. After having considered the rival contentions and after going through Annexure-I and Annexure-II, I am of the view that the substratum of the case as against the petitioners herein has been destroyed and the continued Crl.M.C. No.2717/2016 6 prosecution of the petitioners will not serve any purpose. I am, therefore, of the view that the criminal proceedings pending as against the petitioners can be quashed by invoking the inherent powers of this Court under Section 482 of the Code. In the result, this petition is allowed. All further proceedings against petitioners herein now pending as S.C. No.486 of 2015 on the file of the Assistant Sessions Court-I, Kasaragod shall stand quashed. **RAJA VIJAYARAGHAVAN V., (JUDGE)** vps