Pandara Valappil @ Krishnankutty K. v. P. Gopalan and State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. T. Ravikumar
Judgment Date: 2013-03-04
Court Decision / Holding: Crl.M.C allowed. Annexure-A1 FIR in Crime No. 228 of 1994 and all further proceedings pursuant thereto in LPC.153/2002 before the Judicial First Class Magistrate, Payyannur are hereby quashed.
Final Disposition: Quashed

Parties to the Case

Appellants / Petitioners

Pandara Valappil @ Krishnankutty K.

Respondents

P. Gopalan
State represented by Public Prosecutor

Legal Representation & Advocates

Counsels for Petitioners

• Sri. M. Sasindran
• Sri. A. Arunkumar

Counsels for Respondents

• Sri. S. R. Sreejith
• Smt. S. Hyma

Case Synopsis & Summary

This Criminal Miscellaneous Case (Crl.M.C. No.1108 of 2013) is before the Kerala High Court, filed by Pandara Valappil @ Krishnankutty K., accused No.7 in Crime No.228/1994 of Payangadi Police Station. The petition seeks quashment of LPC 153/2002, which is pending before the Judicial First Class Magistrate, Payyannur, arising from the same crime. The court traces the procedural history: several co-accused (Nos.2, 3, 6) were involved and later acquitted; the remaining accused faced potential conformity with the Special Judge for trials under the Act. The petition relies on the Full Bench decision Moosa v. Sub Inspector of Police (2006 (1) KLT 552), which carved out an exception to the rule that acquittal of co-accused bars the trial of an absconding accused when the substratum of the prosecution is lost. Annexure-AI furnishes the FIR; Annexure-AIII shows a judgment dated 6-5-2005 in S.C.No.515 of 2001 acquitting the trial co-accused, and Annexures AV and AVI indicate earlier quashments against two accused. The High Court assesses whether the substratum is truly lost and whether continuing proceedings would be fruitful, considering that surviving accused fell below five and the earlier quashments. Balancing these factors, the court allows the Crl.M.C and quashes the FIR and all further proceedings in LPC.153/2002, quelling the prosecution against the petitioner.

Provisions of Law Cited

IPC: 147, 148, 448, 323, 324 and 395 read with 149Section 3(2)(v) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989

Legal Doctrines & Maxims

Substratum of the prosecution case
Moosa v. Sub Inspector of Police (Full Bench)—exception to rule that co-accused acquittal bars absconding accused”的原则

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that, following Annexure-AIII and the acquittal of other co-accused, the substratum of the prosecution has been lost. Relying on Moosa v. Sub Inspector of Police (Full Bench), the counsel argues that continuing proceedings against the petitioner would serve no fruitful purpose and that conviction under IPC sections 143/147/149 is unlikely given the reduced number of surviving accused.

Contentions of Respondents

The respondents oppose quashing, arguing that the case file before the JFCM remains capable of proceeding; reliance on substratum loss must be tempered with the overall probative materials and the continued administration of justice; quashing would unduly hinder the prosecution.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Moosa v. Sub Inspector of Police	2006 (1) KLT 552	Positive	Full Bench decision recognizing an exception to the rule that acquittal of co-accused bars trial of absconding accused when the substratum of the prosecution is lost; used as the basis for quashing in the present case.
Judgment in S.C.No.515 of 2001	S.C.No.515 of 2001	Mentioned Only	Annexure-AIII judgment acquitting co-accused, cited to show loss of substratum due to reduction in surviving accused; not applied as a binding principle but referenced for factual effect.

Extracted Judgment Text

Exact text extracted from official judgment records.

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR MONDAY, THE 4TH DAY OF MARCH 2013/13TH PHALGUNA 1934 Crl.MC.No. 1108 of 2013 () --------------------------LPC 153/2002 of J.M.F.C.,PAYYANNUR CRIME NO.228/1994 OF PAYANGADI POLICE STATION, KANNUR PETITIONER(S)/ACCUSED NO.7: ------------------------------------ PANDARA VALAPPIL @ KRISHNANKUTTY K., AGED 41 YEARS S/O. VIJAYAN, KUTHIRIKAL HOUSE KOVVAPPURAM P.O., THEKKUMBAD, KUNHIMANGALAM - 670 302 KANNUR DISTRICT BY ADVS.SRI.M.SASINDRAN SRI.A.ARUNKUMAR ## RESPONDENTS/RESPONDENTS: ----------------------------------- 1.P.GOPALAN, S/O.LATE KANNAN PUNNATHIRIYAN HOUSE, MADAYI AMSOM, VENGARA P.O- 670305 KANNUR DISTRICT - 2.STATE - REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM - 682 031 (CRIME NO.228 OF 1994 OF PAYANGADI POLICE STATION) R1 BY ADV. SRI.S.R.SREEJITH R2 BY PUBLIC PROSECUTOR SMT.S.HYMA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04-03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.C.1108/13 ## APPENDIX PETITIONER(S) EXHIBITS: ANNEXURE-A1: A TRUE COPY OF THE FIR IN CRIME NO.228 OF 1994 OF PAYANGADI POLICE STATION. ANNEXURE-AII : A TRUE COPY OF THE DOCKET SHEET ORDER IN LPC NO.153 OF 2002 OF JUDICIAL FIRST CLASS MAGISTRATE, PAYANNUR. ANNEXURE-AIII: A TRUE COPY OF THE JUDGMENT DATED 6-5-2005 IN S.C. NO.515 OF 2001. ANNEXURE-AIV : A TRUE COPY OF THE AFFIDAVIT FILED BY THE 1ST RESPONDENT DATED 19-5-2012. ANNEXURE-AV : A TRUE COPY OF THE ORDER DATED 20-4-2012 IN CRL. M.C.NO. 1226 OF 2012 ANNEXURE- AVI: A TRUE COPY OF THE JUDGMENT DATED 8-1-2013 IN CRL. M.C. NO.285 OF 2013. RESPONDENTS' EXHIBITS :NIL //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J. ========================== CRL.M.C. No.1108 OF 2013 ==========================** Dated this the 4[th] day of March, 2013 ## **ORDER** Petitioner is accused No.7 in crime No.228 of 1994 of Payangadi Police Station registered for offences punishable under sections 147, 148, 448, 323, 324 and 395 read with section 149 of the Indian Penal Code and section 3(2)(v) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989. The case as against the petitioner is not yet committed and it is now pending before the Court of Judicial First Class Magistrate, Payyannur as LPC.153 of 2002. In fact, accused Nos.2, 3 and 6 were also absconding and case against those who appeared before the committal court was committed as per order in C.P.No.205 of 2000 to the Court of the Special Judge for trial of offences under Act 33 of 1989, Thalassery. Ultimately, they were acquitted as per AnnexureAIII judgment of the Court of the Special Judge for trial of offences under Act 33 of 1989, Thalassery. Subsequently, the 2[nd] accused **Crl.M.C.1108/13** 2 approached this Court by filing Crl.M.C.No.1226 of 2012 and the 6[th] accused approached this Court by filing Crl.M.C.No.285 of 2013, seeking quashment of the respective criminal proceedings pending against them arising out of the aforesaid crime. Those miscellaneous cases were allowed and the proceedings against them in S.C.Nos.717 of 2011 and 892 of 2012 on the files of the Court of Session, Thalassery were quashed. This Crl.M.C has been filed with the prayer to quash the entire proceedings in LPC.153/2002 pending before the Court of Judicial First Class Magistrate, Payyannur based on Annexure-AI FIR arising from the aforesaid crime, obviously, on the strength of Annexures-AIII, AV and AVI. 2. As noticed hereinbefore, accused Nos.1, 4, 5, 8 and 9 in the aforesaid crime were tried in S.C.No.515 of 2001 and were acquitted as per Annexure-AIII. In the light of the Full Bench decision of this Court in **Moosa v. Sub Inspector of Police [2006 (1) KLT 552],** a judgment of acquittal of a co-accused cannot be a bar for the subsequent trial of an absconding accused. The Full Bench carved **Crl.M.C.1108/13** 3 out an exception to the said rule in paragraph 50 of the said decision; i.e., in a case where the substratum of the entire prosecution case is lost with the pronouncement of the judgment in the case of those accused who stood the trial. Therefore, the applicability of the said exception in this case has to be examined. 3. I have heard the learned counsel for the petitioner, the learned counsel appearing for the first respondent and also the learned Public Prosecutor. The learned counsel for the petitioner submitted that the case of the petitioner is liable to be allowed in the light of the Full Bench decision in **Moosa's** case (supra) as the very substratum of the prosecution case is lost with the pronouncement of Annexure-AIII judgment. To buttress the said contention, the learned counsel drew my attention to paragraph 10 of Annexure-AIII judgment. It would reveal that PWs 1 to 3 were examined as occurrence witnesses. However, they deposed to the effect that as the occurrence had taken place at night, they could not identify any of the assailants. It is to be noted that they had not merely deposed to the effect that they could **Crl.M.C.1108/13** 4 not identify the accused who stood the trial whilst they deposed to the effect that they could not identify any of the assailants. Another aspect also assumes relevance in the context of the case. AnnexureAI would reveal that the prosecution had no case that more than nine persons had involved in the commission of the alleged offence. Annexure-AIII judgment would reveal that charge was laid against nine persons including the petitioner and that the petitioner was the 7[th] accused. Annexure-AIII judgment would thus reveal that with the pronouncement of the said judgment acquitting the accused who stood the trial, the number of surviving accused was reduced below 5. Once the number of surviving accused is reduced below 5, no conviction against them is possible on the ground of being a member of an unlawful assembly. Therefore, there can be no question of entering conviction and sentencing them under sections 143, 147 and 149 IPC. That apart, in this case, it is evident that among the surviving accused, accused 2 and 6 in the said crime have already approached this Court seeking quashment of the entire proceedings against them. This Court as per Annexures-AV and AVI orders quashed the proceedings **Crl.M.C.1108/13** 5 against them. In the totality of the circumstances obtained in this case, it is thus obvious that no fruitful purpose could be served by allowing continuance of the proceedings as against the petitioner in LPC.153/2002 pending before the Court of Judicial First Class Magistrate, Payyannur based on the final report laid in the aforesaid crime. As already noticed hereinbefore, the contention of the petitioner that with the pronouncement of Annexure-AIII judgment, the very substratum of the prosecution case is lost is only to be upheld. In the said circumstances, I am inclined to allow this Crl.M.C. Resultantly, this Crl.M.C is allowed. Annexure-A1 FIR in crime No. 228 of 1994 of Payangadi Police Station and all further proceedings pursuant thereto in LPC.153/2002 pending before the Court of Judicial First Class Magistrate, Payyannur are hereby quashed. **Sd/C.T. RAVIKUMAR (JUDGE)** ## **spc/** **Crl.M.C.1108/13** 6 **C.T. RAVIKUMAR, J.** **JUDGMENT** **Crl.M.C.1108/13** 7 **September, 2010**