Rajeev v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 4[TH] DAY OF SEPTEMBER 2023 / 13TH BHADRA, 1945** **CRL.MC NO. 2724 OF 2023** **AGAINST THE ORDER/JUDGMENT LP 97/2022 OF ADDITIONAL SUB** **COURT,ATTINGAL** ## **PETITIONER/3RD ACCUSED:** RAJEEV AGED 42 YEARS S/O.RAVEENDRAN, VELAKATHU VEEDU, NEAR VALLOOR UDAYAVANKAVU TEMPLE, PAZHAYAKUNNUMMEL VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN - 695601 BY ADVS. PRATHEESH.P ANJANA KANNATH ## **RESPONDENT/STATE:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 THE STATION HOUSE OFFICER KILIMANOOR POLICE STATION, THIRUVANANTHAPURAM DISTRICT, PIN – 695601 BY ADV. SRI.VIPIN NARAYANAN, PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.2724 of 2023 2 **P.V.KUNHIKRISHNAN, J. ------------------------------** **Crl.M.C.No.2724 of 2023 ---------------------------------------------Dated this the 04[th] day of September, 2023** ## **ORDER** This Criminal Miscellaneous Case is filed under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity). 2. Petitioner is the accused in L.P.No.97/2022 in SC No.1347/2011 on the file of the Asst.Sessions Court, Attingal. The above case is charge sheeted against the petitioner and others alleging offences punishable under Sections 143, 147, 451, 436, 427 r/w 149 IPC. 3. When this Crl.M.C came up for consideration on 01.08.2023, this Court passed the following order: Crl.M.C.No.2724 of 2023 3 “ _The learned Public Prosecutor submits that the case against the petitioner has been included in the list of Long Pending cases. Before considering the merits of the matter, the petitioner will have to surrender before the learned Magistrate and regularize the proceedings._ _The petitioner shall appear before the jurisdictional Magistrate and seek regularisation of the proceedings. While considering the application for bail, the learned Magistrate shall bear in mind that a petition seeking to quash the proceedings based on the acquittal of the co-accused is pending before this Court._ _Coercive proceedings, if any, against the petitioner shall be kept in abeyance for a period of three weeks.”_ 4. Heard counsel for the petitioner and the Public Prosecutor. Today, the counsel appearing for the petitioner submitted that the petitioner surrendered before the lower court and he was relesed on bail. The counsel also submitted that, the co-accused Nos.2, 4, 5, 8 and 9 were already Crl.M.C.No.2724 of 2023 4 acquitted by the trial court as per Annexure A3 judgment and the continuation of the trial against the petitioner, who is the 3[rd] accused 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 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 Crl.M.C.No.2724 of 2023 5 by the judgement 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 Annexure A3 judgment by which the co-accused were acquitted: _“16. The next aspect to be considered is as to whether he could identify the accused at 1 P.M the time at which his house had been set on fire. It is deposed by him that he had been hiding in the terrace of the house of his daughter, which had been under construction, while witnessing the incident at 1 P.M. However he admitted that the said house was located at a distance of about 50 mts. from the place of occurrence and there had been trees in between. It is therefore doubtful whether he could clearly identify the offenders at 1 P.M, as deposed by him. His deposition that he had occasion to see the accused at Kilimanoor junction_ Crl.M.C.No.2724 of 2023 6 _several times cannot also be relied on for the reasons given above. The uncorroborated deposition of PW2 cannot be acted upon to come to a conclusion that it had been the accused who had committed the alleged offences. The prosecution could not prove the identity of the accused persons beyond reasonable doubt. This point is therefore answered in the negative.”_ From the above, it is clear that the 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 in Crime No.434/2003 of Kilimanoor Police Station, Crl.M.C.No.2724 of 2023 **==> picture [7 x 8] intentionally omitted <==** Thiruvananthapuram District and all further proceedings in L.P.No.97/2022 in S.C.No.1347/2011 on the file of the Assistant Sessions Court, Attingal as against the petitioner alone are quashed. Sd/- DM **P.V.KUNHIKRISHNAN JUDGE** Crl.M.C.No.2724 of 2023 8 ## **APPENDIX OF CRL.MC 2724/2023** PETITIONER ANNEXURES ANNEXURE A1 THE CERTIFIED COPY OF FIR WITH FIS IN CRIME NO.434/2003 OF KILIMANOOR POLICE STATION DATED 23.12.2003 ANNEXURE A2 THE CERTIFIED COPY OF FINAL REPORT IN CRIME NO.434/2003 OF KILIMANOOR POLICE STATION DATED 31.8.2006 ANNEXURE A3 THE CERTIFIED COPY OF JUDGMENT IN S.C NO.354/2007 DA TED 28.11.2011 ON THE FILE OF ASST. SESSIONS COURT, ATTINGAL RESPONDENTS EXHIBITS :NIL //TRUE COPY// PA TO JUDGE