Rafeeq and Anil Kumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **TUESDAY, THE 25TH DAY OF SEPTEMBER 2018 / 3RD ASWINA, 1940** ## **Crl.MC.No. 5343 of 2013** **AGAINST THE PROCEEDINGS IN C.C.NO.993/2009 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ATTINGAL** ## **PETITIONERS/ ACCUSED 2 & 3 :** **1 RAFEEK, S/O.ASANARU KUNJU, KUZHIVILA VEEDU, AKKOTTUVILA DESOM, KIZHUVILAM VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM. 2 ANILKUMAR, S/O.JAGANATHAN, VILAYIL VEEDU, AKKOTTUVILA DESOM, KIZHUVILAM VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM.** **BY ADV. SRI.SABU S.KALLARAMOOLA** **RESPONDENT/ COMPLAINANT :** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT BUILDINGS, ERNAKULAM - 682 031.** **BY PUBLIC PROSECUTOR SRI.RAMESH CHAND** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01.06.2018, THE COURT ON 25.09.2018 PASSED THE FOLLOWING :** **Crl.MC.No. 5343 of 2013** 2 ## **ORDER** The petitioners are accused Nos. 2 and 3 in C.C.No.993/2009 pending before the Judicial First Class Magistrate Court-I, Attingal. The offence alleged are under Sections 143, 144, 147, 341, 294(b), 427, 447 r/w. Section 149 of the Indian Penal Code. The de facto complainant filed a complaint before the JFCM-I, Attingal and the same was forwarded to the Chirayankeezh Police Station for investigation. They registered the case as Crime No.305/2004 and submitted final report. The case of the prosecution is that on 09.05.2004, around 12 hours at night, the accused (7 Nos.) formed themselves into an unlawful assembly and in prosecution of their common object to cause loss to the property of the de facto complainant situated on the side of the road leading from Netaji junction to Andoor farm, criminally trespassed into the property and destroyed the boundary on the western side of the property having an extent of 200 feet and thereby committed the offence as alleged. Certified copy of the charge sheet in Crime No.305/2004 of Chirayinkeezh Police Station is produced and marked as Annexure-I. Accused Nos. 1, 2, 4 and 7 in Annexure-I are tried by the JFCM-I, Attingal in C.C.No.1468/2005 and acquitted under Section 255 (1) of the Criminal Procedure Code. The Case against the petitioners as well as accused No.3 are refiled as **Crl.MC.No. 5343 of 2013** 3 C.C.No.993/2009 and is now pending before the JFCM-I, Attingal. Certified copy of the judgment dated 27.10.2009 in C.C.No.1468/2005 of the JFCM-I, Attingal is produced and marked as Annexure-2. It is submitted that the trial court passed Annexure-1 judgment after examining the de facto complainant as well as two other prosecution witnesses including the Investigation Officer. From the prosecution evidence, the trial court found that the date of alleged incident was occurred on 09.05.2004 and the complaint was filed only on 05.10.2004, i.e. 5 months after the alleged occurrence. The court also found that a civil case against all the accused was preferred by the de facto complainant. Since no evidence was let on, the Magistrate has acquitted all other accused persons except the petitioners. The very substratum of the case has been lost and hence no question of conviction of the petitioners as a member of an unlawful assembly under the aforesaid Section, even if continuance of proceedings against the petitioners is permitted. In such circumstances, allowing continuation of the proceedings against the petitioners would not be in the interest of justice and abuse of process of court. So, the petitioner sought for quashing the entire proceedings by invoking Section 482 of the Cr.P.C. on following grounds. 2. The main ground is that the entire matter has been tried by the lower court in respect of the other accused persons and **Crl.MC.No. 5343 of 2013** 4 they were acquitted. So the continuance of the proceedings against the petitioners is an abuse of process of law in view of Annexure A2 judgment. In Annexure A2 judgment, the very substratum of the case has been lost and there is delay in launching the FIR also. The main argument of the learned counsel for the petitioners was that there was no evidence adduced by the de facto complainant and other prosecution witnesses before the lower court in order to connect the accused in this case. Further, even if the trial is continued against these accused, it will not give any improvement and the prosecution could not able to substantiate the case against them and it will be really an abuse of process of court. In the meanwhile, report was obtained by the Chief Judicial Magistrate Court-I, Attingal wherein it was stated that stay was given and this matter was pending before the lower court. The concerned Magistrate has reported that the petitioners were absconding for a long time. In fact, the crime was registered in the year 2004 and the C.C. was taken on file in the year 2009 and from that day onwards, the petitioners were absconding and now in the light of Annexure A2judgment, they have approached this Court in order to quash the entire proceedings. 3. The main argument on the side of the learned counsel for the petitioners is that except the petitioners, all other accused persons were acquitted by the court below. Therefore, there is no **Crl.MC.No. 5343 of 2013** 5 meaning in continuing the trial as against the petitioners. In this connection, I had gone through Annexure 2 judgment of the lower court below, in which it is stated that the aggrieved persons have given evidence to the effect that they have seen the accused persons committing the offence and that the accused were identified about 200 metres away from the place of occurrence. According to PW1, he has initiated a civil case against petitioners, restraining them from trespassing into the property and cutting open a pathway. PW2, who is the son of PW1, has also given evidence to the effect that a group of people criminally trespassed into the property of his father and destroyed the boundaries. It is also stated that A1 to A4 wrongfully restrained him and the remaining accused inflicted blow on him and also caused loss to the rubber trees in the property. The lower court has acquitted accused Nos. 1, 2, 4 & 7, who were on the trial stage finding that the testimony of PWs1 and 2, without independent corroboration, is not sufficient to bring home the guilt of the accused. The case against A3, A5 and A6 were re-filed as C.C No. 993 of 2009. In fact, the matter was not settled between the parties and PWs 1 and 2. The aggrieved persons have given evidence before the Court and according to the trial court, the evidence adduced by PWs 1 and 2 is not sufficient to prove the guilt of the accused and accordingly all other accused persons were acquitted. But the reason as stated by the lower court below cannot be taken **Crl.MC.No. 5343 of 2013** 6 into account for acquitting the petitioners herein. The nature of evidence and the nature of the decision will depend upon the evidence adduced in each case. So, the evidence adduced in the previous trial cannot be considered to hold that the petitioners are not guilty of the offences as alleged. In fact, the pendency of civil dispute is not a criteria for quashing the entire proceedings. 4. The petitioners' counsel has placed reliance on _**Ashok Kumar v. State of Kerala (2013 (4) KHC 110)**_ . In that case, out of nine accused, five accused who faced trial were acquitted at the revisional stage and it is held that since the substratum of prosecution itself is dislodged, no purpose would be served, if the other accused is allowed to stand trial. ## 5. In _**Moosa v. Sub Inspector of Police (2006(1) KLT 552)**_ , it is held that the order of acquittal of a co-accused will not and cannot bar subsequent trial of the absconding accused. It is further held that the judgment rendered in the case of a co-accused and the reasoning of the judgment contained therein or the appreciation of the evidence therein are not matters to be taken into account for the purpose of granting relief of quashment of proceedings moved by the absconding accused. In _**State of Haryana and Others v. Ch. Bhajan Lal and Others [1992 AIR SC 604]** ,_ it was held that the power under Section 482 of the Cr.P.C. is to be used sparingly only in some cases. In catena of cases, the court reiterated that power of quashment or criminal proceedings should be exercised very sparingly and quashing a complaint in criminal proceedings would depend upon the facts and circumstances of each case. **Crl.MC.No. 5343 of 2013** 7 6. The learned counsel for the petitioners has argued that the acquittal of a co-accused in the same proceedings may, however, be a case where the very substratum of the prosecution case is lost which may be an exception to this Rule. However, as held by the Apex Court above, it is to be held that even when a co-accused 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 the present case, the petitioners have prayed for the quashment of the entire proceedings initiated against them on the ground that the other co-accused were acquitted. The de facto complainant and the witnesses have given evidence to the effect that they could identify the assailants, but the lower court has disbelieved the version of PWs 1 and 2. But the acquittal of the other accused may not be a ground to acquit the accused relying on the evidence of PWs 1 and 2. According to the petitioners, the compelling continuation of proceedings against the petitioners is a futility and the chance of conviction of the petitioners is very bleak. But on going through the evidence adduced by PWs 1 and 2 and the evidence from the earlier proceedings, it would reveal that the proceedings now pending against the petitioners cannot be quashed on the basis of the earlier proceedings. The learned counsel for the petitioners has again argued that the continuation of the proceedings will result in sheer waste of the invaluable time of the Court. It is true that the earlier proceedings relates to the same set of facts. The co-accused were acquitted disbelieving the version of the evidence adduced by PWs 1 and 2 and that will not be sufficient enough to straight away acquit the accused by invoking the extra ordinary powers under Section 482 Cr.P.C. The petitioners herein is charged under Sections 143, 144, 147, 341, 294(b), 427, 447 r/w Section 149 IPC. The intention of the petitioners is only to avoid the trial before the court below. I do not find any ground to invoke the power under 8 ## **Crl.MC.No. 5343 of 2013** Section 482 Cr.P.C. Therefore, the prayer to quash the entire proceedings cannot be allowed. In the result, this Cr.M.C is dismissed. Sd/- **ANNIE JOHN JUDGE** RKM **Crl.MC.No. 5343 of 2013** 9 ## **APPENDIX** ## **PETITIONERS' ANNEXURES :** **ANNEXURE 1 ANNEXURE-1: CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.305/2004 OF CHIRAYINKEEZHU POLICE STATION. ANNEXURE 2 ANNEXURE-2: CERTIFIED COPY OF JUDGMENT IN C.C.NO.1468/2005 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-1, ATTINGAL. RESPONDENT' ANNEXURES : NIL** ## **RKM**