Puthiyottil Rashid v. State of Kerala

## **`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. 8242 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT SC 682/2023 OF ADDITIONAL DISTRICT COURT (SPECIAL COURT FOR TRIAL FOR MARADU CASES) KOZHIKODE ``` ## **`PETITIONER/ACCUSED NO.8:`** ``` PUTHIYOTTIL RASHID AGED 34 YEARS, S/O ALI, KOYILOTHKANDY HOUSE, KAITHERI, BHOOMIVATHUKKAL.P.O., PIN - 673517 ``` ``` BY ADVS. ZUBAIR PULIKKOOL RAJAN I. ``` ## **`RESPONDENT/RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY ADV. ``` ``` PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ``` ``` ON 25.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL. M.C. NO.8242 OF 2023 ``` 2 **P.V.KUNHIKRISHNAN, J. -------------------------------Crl.M.C. No. 8242 of 2023 ------------------------------------Dated this the 25[th] day of October, 2023** ## **O R D E R** This Criminal Miscellaneous Case is filed under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity). 2. The petitioner is the 8[th] accused in Crime No.330/2011 of Valayam Police Station, which is now pending as S.C. No.682/2023 on the file of Additional District & Sessions Court (Special Court for Trial for Maradu cases), Kozhikode. The above case is charge sheeted against the petitioner and others alleging offences punishable under Sections 143, 145, 147, 353, 332, 153A r/w Section 149 IPC and Sections 3 & ``` CRL. M.C. NO.8242 OF 2023 ``` 3 ## 5 of Explosive Substances Act. 3. The prosecution case is that the accused persons formed themselves into an unlawful assembly and attacked them with stone, stick, sword, bomb etc. It is submitted that co-accused were already acquitted by the trial court as per Annexure-2 judgment. It is submitted that, in the light of the same, the continuation of the prosecution against the petitioner is abuse of process of court. 4. Heard counsel for the petitioner and the Public Prosecutor. The counsel for the petitioner submitted that the co-accused were already acquitted by the trial court and the continuation of the trial against the petitioner will be an abuse of process of court because the substratum of the prosecution case is shattered. The Public Prosecutor submitted that the petitioner has to face trial before the lower court and this court may not invoke the powers under Section 4 ``` CRL. M.C. NO.8242 OF 2023 ``` 482 of the Code. 5. 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 judgment 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 the petitioner 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:- ``` CRL. M.C. NO.8242 OF 2023 ``` 5 “41. PW1, 2 and 8 had no case that they had previous acquaintance with the accused. According to PW1, 2 and 8 there were about 50 persons on each side. The final report was filed only against 38 persons. The incident happened after 8.30 p.m. According to PW1 and 2 they had seen the incident in the head light of the vehicle. Considering the facts such as the incident happened at night and about 100 persons were involved in the violence it is held that, even if there is the light of the vehicle at the place of occurrence, it is not possible for PW1, 2 and 8 to identify the assailants clearly at the time of incident since they have no previous acquaintance with the accused. 42. PW1 had not specifically identified any of the accused before court. PW2 correctly identified accused No.3 and PW8 clearly identified accused No.5 before court. PW2 and 8 had no case that they had previous acquaintance with the accused whom they had specifically identified before court. In this case no test identification parade was conducted. The identification of A3 by PW2 and A5 by PW8 before court after 10 years of the incident without a test identification parade is not reliable since they had no previous acquaintance with A3 and A5 and ``` CRL. M.C. NO.8242 OF 2023 ``` 6 they had not opportunity to clearly identify A3 and A5 at the time of incident. 43. Regarding the identification of other accusedPW1, 2 and 8 stated that the persons standing in the accused dock are the persons involved in the violence. Such an omnibus identification is not sufficient to prove the identity of the accused since PW1, 2 and 8 had no opportunity to clearly identify the accused who are facing trial form among the about 100 persons who were present at the time of incident, they had no previous acquaintance with the accused and no test identification parade was conducted. 44. Now the point to be considered is whether the prosecution proved that any of the accused were arrested from the place of occurrence. Ext.P22 series are the arrest memos as per which Afsal, Balakrishnan, Abdul Latheef and Lineesh were arrested. According to prosecution the incident was on 8-12-2011 at 8.30 pm. Ext.P22 series shows that the accused were taken into custody on 9-12- 2011 at 10.30. So Ext.P22 series shows that the accused were not taken into custody not on the date of incident ie on 8-12-2011 but on the next day. In Ext.P22 series the crime number is also mentioned. There ``` CRL. M.C. NO.8242 OF 2023 ``` 7 will be no crime number in the arrest memos if the accused were taken into custody from the place of occurrence. The presence of crime No. in Ext.P22 series shows that the accused were taken into custody not before but after the crime was registered. Ext.P22 series disprove the case of the prosecution that the accused named in Ext.P22 series were taken into custody from the place of occurrence as claimed by the prosecution. In view of the above discussion, it is held that prosecution failed to prove that the accused named in Ext.P22 series were taken into custody from the place of occurrence as claimed by the prosecution. Further PW1, 2 and 8 had no case that the persons arrested from the spot did any overt acts. So even if the persons named in Ext.P22 series were arrested from the place of occurrence it cannot be held that those persons committed the violence or members of unlawful assembly as claimed by the prosecution. 45. In view of the above discussion it is held that the evidence adduced by the prosecution is not sufficient to prove the identity of accused beyond reasonable doubt.” 6. From the above, it is clear that the 8 ``` CRL. M.C. NO.8242 OF 2023 ``` 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 this Criminal Miscellaneous Case is allowed. All further proceedings against the petitioner alone in S.C.No.682/2023 on the file of Additional District & Sessions Court (Special Court for Trial for Maradu cases), Kozhikode arising from Crime No.330/2011 of Valayam Police Station are quashed. nvj Sd/- **P.V.KUNHIKRISHNAN JUDGE** ``` CRL. M.C. NO.8242 OF 2023 ``` 9 ## **`APPENDIX OF CRL.MC 8242/2023`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE 1THE CERTIFIED COPY OF THE FINAL REPORT DATED 12.09.2017. ``` ``` ANNEXURE 2THE CERTIFIED COPY OF THE JUDGMENT IN SESSIONS CASE NO. 221/2018 ON THE FILE OF SPECIAL ADDITIONAL SESSIONS JUDGE (MARAD CASES), KOZHIKODE DATED 20.06.2023. ``` RESPONDENTS EXHIBITS :NIL //TRUE COPY// PA TO JUDGE