Rashid N K; Naseeh Rahman K P; Niyas K v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ``` THURSDAY, THE 5[TH] DAY OF OCTOBER 2023 / 13TH ASWINA, 1945 ``` ## **`CRL.MC NO. 3786 OF 2022`** ## **`PETITIONERS/ACCUSED:`** ``` 1RASHID N K (A2) AGED 30 YEARS S/O KUNHALI, PUZHAMPURATH HOUSE, KARASSERI PO, MUKKOM, KOZHIKODE - 673602 2NASEEH RAHMAN K P (A4) AGED 26 YEARS S/O ASSAIN, KARUTHAPARAMBU HOUSE, KARASSERI PO, MUKKOM, KOZHIKODE - 673602 3NIYAS K (A13) AGED 22 YEARS S/O MUSTHAFA, KADANNAPADATHIL HOUSE, ERANJIMAAVU, PANNIKKODE PO, MUKKOM, KOZHIKODE - 673602 BY ADVS. A.RANJITH NARAYANAN A.SIMI C.T.AHAMMEDKUTTY ``` ## **`RESPONDENTS/STATE:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, REPRSENTING THE SI OF POLICE, MUKKOM POLICE STATION, KOZHIKODE, PIN – 673 640 ``` ``` BY ADV.SRI.M.P PRASANTH, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` Crl.M.C.No.3786 of 2022 ``` 2 **P.V.KUNHIKRISHNAN, J. -----------------------------Crl.M.C. No.3786 of 2022 ---------------------------------------------Dated this the 05[th] day of October, 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. Petitioners are the accused Nos.2, 4 and 13 in S.C. No. 969/2020 (refiled as L.P. No.18/2022) on the file of the Second Additional Assistant Sessions Court, Kozhikode arising from Crime No.655/2017 of Mukkom Police Station. The above case is registered against the petitioners alleging offences punishable under Sections 143, 3 ``` Crl.M.C.No.3786 of 2022 ``` 145, 147, 148, 324, 308, 353 and 283 r/w 149 IPC. 3. It is submitted that the co-accused were acquitted as per Annexure A3 judgment. It is further submitted that, in the light of the same, the prosecution against the petitioners will be an abuse of process of court. 4. Heard counsel for the petitioners and the Public Prosecutor. The counsel for the petitioners submitted that the co-accused were already acquitted by the trial court and the continuation of the trial against the petitioners will be an abuse of process of court because the substratum of the prosecution case is shattered. The Public Prosecutor submitted that the petitioners have to face trial before the lower court and this court may not invoke the powers under Section 482 of the Code. 4 ``` Crl.M.C.No.3786 of 2022 ``` 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 coaccused 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 petitioners will be an abuse of process of court. It will be beneficial to extract the relevant portion of 5 ``` Crl.M.C.No.3786 of 2022 ``` ## Annexure A3 judgment by which the co-accused were acquitted: “13. PW2 deposed that he sustained hurt in the incident and therefore prosecution alleged that accused persons committed the offence punishable u/s.332 of Indian Penal Code. PW2 during cross examination deposed that he went to the hospital and he had shown the injury to the doctor. But prosecution failed to produce any wound certificate before the court to show that PW2 sustained injury in the incident. Hence, that part of the evidence deposed by PW2 does not inspire the confidence of the court. 14. The important question to be answered is whether the prosecution successfully proved that these accused persons committed the offence. PW1 failed to identify the accused persons present before the court as the assailants. According to him, when the assailants decamped from the place of occurrence he went to the police station and registered the crime. Thereafter the officials along with him identified 21 assailants and they were taken into custody. It shows that he has no case that he got opportunity to identify these accused persons as ``` Crl.M.C.No.3786 of 2022 ``` 6 assailants at the time of incident. He also stated that he is not able to identify each and every accused during his examination before the court. 15. PW2 vaguely stated that the accused persons present before the court created problem. He also never identified any of the accused persons as the assailants. PW3 deposed that he identified the accused persons named Aboobacker, Shajahan, Siraj, Sujah Rahman, Ajesh, Sudheer and Shibin from the police station. But he expressed his inability to identify them during his examination before the court. PW4 stated that he did not know the name of the protesters. According to him, they were present before the court. 16. The above evidence deposed by PW1 to 4 shows that they evasively stated that the accused persons present before the court are the assailants. Admittedly the accused were not arrested from the spot. PW1 deposed that some of the assailants were identified by his colleagues and about 21 persons were taken into custody. PW10, the investigating officer deposed that some persons were brought to the police station even before the registration of the FIR. Admittedly about 200 persons assembled there ``` Crl.M.C.No.3786 of 2022 ``` 7 and they unleashed violence against police officials. Prosecution has no case that the accused persons are known to them earlier. In such circumstances it is impossible for the police to identify the assailants who actually committed the offence. The substantive evidence is the identification of the accused before the court and the same lacking in the present case. Therefore, the only conclusion possible is that prosecution failed to prove that these accused persons committed any offence charged against them. Hence, points are answered against the prosecution.” 6. 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. 8 ``` Crl.M.C.No.3786 of 2022 ``` Hence this Criminal Miscellaneous Case is allowed. All further proceedings against the petitioners in S.C. No.969/2020 (refiled as L.P. No.18/2022) on the file of the Second Additional Assistant Sessions Court, Kozhikode arising from Crime No.655/2017 of Mukkom Police Station are quashed. Sd/- nvj **P.V.KUNHIKRISHNAN JUDGE** ``` Crl.M.C.No.3786 of 2022 ``` 9 ## **`APPENDIX OF CRL.MC 3786/2022`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE A1CERTIFIED COPY OF THE FIR DATED 01/11/2017 IN CRIME NO.655/2017 OF MUKKOM POLICE STATION ``` ``` ANNEXURE A2CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.655/2017 OF MUKKOM POLICE STATION FILED BEFORE THE LEARNED JFMC II, THAMARASSERY ``` ``` ANNEXURE A3TRUE COPY OF THE JUDGMENT DATED 11/01/2022 IN S.C.NO.969/2020 PASSED BY THE LEARNED IIND ADDL. ASST. SESSIONS COURT, KOZHIKODE ``` ``` RESPONDENTS EXHIBITS:NIL ``` ``` //TRUE COPY//PA TO JUDGE ```