PRASAD v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT ## THE HONOURABLE MRS. JUSTICE ANNIE JOHN MONDAY, THE 11TH DAY OF FEBRUARY 2019 / 22ND MAGHA, 1940 ## Crl.MC.No. 2308 of 2014 AGAINST THE JUDGMENT IN CC 121/2011 of CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA ## PETITIONER/ACCUSED NO.6: PRASAD, AGED 36 YEARS S/O.RADHAKRISHNAN, WARRIAM HOUSE, PUNNAPPRA PANCHAYATH, ALAPPUZHA. BY ADV. SRI.B.PRAMOD ## RESPONDENT/RESPONDENTS: STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. ## OTHER PRESENT: SRI SWAMIDASAN, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16.02.2018, THE COURT ON 11.02.2019 PASSED THE FOLLOWING: Crl.M.C. No. 2308 OF 2014 -2- ## **ORDER** The petitioner is the accused in Crime No. 138 of 2008 of Alappuzha North Police Station for an offence punishable under Section 20 r/w Section 27 of the Arms Act. Apart from the petitioner, 7 more accused were arrayed in the crime. 2. The case of the prosecution is as follows: On 17.03.2008, at 2 a.m., the accused was found by the police at a public road and some of them were in possession of sword sticks. Accused Nos. 1 to 4 were said to have been arrested from the spot. Accused Nos. 5 to 8 were alleged to have given slip to the police. The name of accused Nos. 5 to 8 were incorporated in the FIS as the same was allegedly supplied by accused Nos. 1 to 4. But, later, Annexure I charge-sheet was filed only against accused Nos. 1 to 4. Later, accused Nos. 5 and 8 were arrested and Annexure II charge sheet was filed against them. Eventhough it is stated in Annexure II that the identity of accused Nos. 6 and 7 is yet to be ascertained. The name and address of the petitioner and another person was included therein as accused Nos. 6 and 7. Later, C.C. No. 279 of 2008 was instituted based on Annexures I and II. Later, accused No.7 appeared before the court below and all the accused except the petitioner herein faced trial and were acquitted as per Annexure III judgment. The petitioner was abroad at that time. Crl.M.C. No. 2308 OF 2014 -3- The case against him was split up and numbered as C.C. No. 121 of 2011. 3. Later, the petitioner appeared before the court below and trial was conducted. On the side of prosecution, PWs 1 to 3 were examined. But, they have deposed that they were seeing the petitioner for the first time and therefore, they could not identify the petitioner. PW3 also deposed that admittedly, he has not seen the petitioner previously and was only having hearsay information about the incident. After the closure of the prosecution evidence, the petitioner returned to his place of employment. Accordingly, the court below has issued NBW against the petitioner and the same is pending. 4. The learned counsel for the petitioner contended that since the co-accused were acquitted, the continuation of the prosecution against the petitioner would be an abuse of process of court. According to the learned counsel, in view of Annexure III judgment acquitting the coaccused, the substratum of the case is lost and the petitioner does not deserve to be prosecuted in respect of the same set of allegations. The court below found that in the absence of the required notification under the Arms Act, the evidence of the police officials cannot be relied upon. Therefore, it would not be possible for the court below to reach a different conclusion even if the petitioner is tried on the same allegations. Even the evidence of PWs 1 to 3 does not support the case Crl.M.C. No. 2308 OF 2014 -4- of prosecution. Moreover, the petitioner does not have any criminal antecedents. On the grounds as stated above, the petitioner's counsel prays for quashing the entire proceedings against the petitioner. As per Annexure II charge-sheet, the petitioner and other accused were chargesheeted under Section 20 r/w Section 27 of the Arms Act . The petitioner herein was absent when the other accused faced trial since he was abroad. Later, he surrendered before the court below to undergo trial. The petitioner has produced Annexure III judgment passed against accused Nos. 1 to 5, 7 and 8. 4 witnesses were examined and Exts.P1 to P3 and MO1 series were marked. The court below, after the conclusion of the trial against other accused, ultimately held that the testimony of PWs 1 to 4 are not reliable, unless and until it is corroborated with the evidence of other independent witnesses. Further, it is held that even if the statement of the witnesses are reliable, there is no notification in the area where the accused were found with arms. Mere statement that the accused were found with sword stick does not make the offence. Therefore, the prosecution has failed to establish the guilt of the accused. The petitioner has also produced Annexure IV statement of PW1. He was the Police Constable of Alappuzha Police Station, who accompanied the Dy. SP at the time of detection of the offence. He has deposed that he has seen the petitioner for the first time in the dock. Annexure V is the deposition of PW1, who was the Crl.M.C. No. 2308 OF 2014 -5- Head Constable of Alappuzha North Police Station . The deposition was produced to prove that he has not identified the petitioner herein. Annexure VI is the deposition of PW3, who was the SI of Alappuzha North Police Station. He is the official, who has filed the charge-sheet. According to him, he has not identified the petitioner, A6 and A7. The petitioner has relied on the decision in _**Abbas v. State of Kerala**_ [2013 (2) KLT 976], wherein it is held that a judgment of acquittal of coaccused would not act as a bar for subsequent trial of absconding accused. However, where the very substratum of the case is lost, there can be an exception to the Rule. In _**Moosa v. Sub Inspector of Police**_ [(2006(1) KLT 552], it is held that the judgment rendered in the case of a co-accused and the reasoning of the judgment contained therein of appreciation of the evidence therein are not matters to be taken into account for the purpose of granting a relief to quash the proceedings. In _**Jinu v. State of Kerala**_ [2017 (5) KHC 565], it is held that the accused was found threatening the public by showing a sword. In that decision, it is held that as long as the the area where the sword used is not a notified area, an offence under Section 27 will not lie. In the instant case, it is quite clear from Annexure III judgment that the specified place does not come under the notified area and therefore, Section 27 of the Arms Act is not applicable. 5. In view of the above, I am of the view that the substratum of Crl.M.C. No. 2308 OF 2014 -6- this case is lost and the continuation of further proceedings in this case will really be an abuse of process of court. In fact, the crime was registered in the year 2008. The charge sheet was filed on 25.05.2008. After a long lapse of time, the revival of the case for further examination will not improve the case. In the above circumstances, this Crl.M.C is allowed and Annexures I and II charge sheet as against the petitioner and all further proceedings in C.C. No. 121 of 2011 are hereby quashed. sd/- **ANNIE JOHN, JUDGE.** _Rv_ Crl.M.C. No. 2308 OF 2014 -7- ## **APPENDIX** PETITIONER'S/S EXHIBITS: ANNEXURE I CERTIFIED COPY OF THE CHARGE-SHEET DATED 19.03.2008 IN CRIME NO.138/2008 OF ALAPPUZHA NORTH POLICE STATION. ANNEXURE II CERTIFIED COPY OF THE ADDL. CHARGE-SHEET DATED 25.05.2008 IN CRIME NO.138/2008 OF ALAPPUZHA NORTH POLICE STATION. ANNEXURE III TRUE COPY OF THE JUDGEMENT O4.11.2010 IN C.C.NO.279/2008 OF THE CJM COURT, ALAPPUZHA. ANNEXURE IV TRUE COPY OF THE DEPOSITION OF PW1 IN C.C.NO.121/2011 OF THE CJM COURT, ALAPPUZHA. ANNEXURE V TRUE COPY OF THE DEPOSITION OF PW2 IN C.C.NO.121/2011 OF THE CJM COURT, ALAPPUZHA. ANNEXURE VI TRUE COPY OF THE DEPOSITION OF PW3 IN C.C.NO.121/2011 OF THE CJM COURT, ALAPPUZHA. ## RESPONDENT'S EXHIBITS: NIL /True Copy/ rv PS to Judge. Crl.M.C. No. 2308 OF 2014 -8-