Ravi s/o Seshayyan; Arun s/o Surlin; John Paul s/o Varghese v. State of Kerala and Balaramapuram Police Station; Prathap

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 19[TH] DAY OF SEPTEMBER 2022 / 28TH BHADRA, 1944 CRL.MC NO. 4753 OF 2022 AGAINST THE ORDER/JUDGMENTCC 914/2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III,NEYYATTINKARA** ## **PETITIONER/ACCUSED NOS 2, 4 AND 5:** 1 RAVI AGED 58 YEARS S/O. SESHAYYAN, KARACKATTUVILA VEEDU, BALARAMAPURAM R.C. STREET, PALLICHAL VILLAGE, BALARAMAPURAM POST, THIRUVANANTHAPURAM DIST, PIN - 695501 2 ARUN AGED 42 YEARS S/O. SURLIN, PALLIVILAKATH VEEDU, BALARAMAPURAM R.C. STREET, PALLICHAL VILLAGE, BALARAMAPURAM POST, THIRUVANANTHAPURAM DISTRICT-, PIN - 695501 3 JOHN PAUL AGED 42 YEARS S/O. VARGHESE, PALLIVILAKATH VEEDU, BALARAMAPURAM R.C. STREET, PALLICHAL VILLAGE, BALARAMAPURAM POST, THIRUVANANTHAPURAM DISTRICT-695501 BY ADVS. AJIT G ANJARLEKAR G.P.SHINOD GOVIND PADMANAABHAN ## **RESPONDENTS/STATE AND DEFACTO COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR AT THE HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 - 2 THE STATION HOUSE OFFICER Crl.M.C No. 4753 of 2022 2 BALARAMAPURAM POLICE STATION, THIRUVANANTHAPURAM RURAL, BALARAMAPURAM POST, THIRUVANANTHAPURAM, PIN - 695501 3 PRATHAP AGED 47 YEARS S/O SREEDHARAN NAIR, SREEDHARA VILASOM HOUSE, THAZHAKARAKONAM, UCHAL DESOM, MALAYINKEEZHU VILLAGE, MALAYINKEEZHU POST, THIRUVANANTHAPURAM, PIN - 695571 BY ADV PUBLIC PROSECUTOR ADV C S HRITHWIK-SR PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19.09.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C No. 4753 of 2022 3 ## **ORDER** The petitioners are the Accused Nos. 2, 4 and 5 in Crime No. 458/2007 of Balaramapuram Police Station. The aforesaid crime was registered against 6 accused persons for the offences punishable under Sections 143, 147, 148, 149, 332 read with Section 149 of Indian Penal Code and under Section 38 read with Section 52 of the Kerala Police Act. 2. The prosecution case is that, on 27.12.2007, at around 9.00 p.m, when the Sub Inspector of Balaramapuram Police Station along with the police party were conducting patrolling duty at Balaramapuram they found the accused persons standing in front of RC Church, Balaramapuram. Eventhough, the police directed them to disperse, they did not do so and thereupon, the accused by disobeying the direction of the police, assaulted the policeman and caused obstruction to the discharge of the official duties of the police. Annexure-A is the FIR and Annexure-B is the final report submitted by the police. The Judicial First Class Magistrate Court-III, Neyyattinkara has taken cognizance of the Crl.M.C No. 4753 of 2022 4 offences as C.C No. 306/2008 and in the trial conducted, all the accused persons except the petitioners herein have participated. Annexure-M is the judgment passed by the said Court after a full fledged trial. In the said judgment, after examining the materials placed on record by the prosecution, it was found that the accused Nos.1, 3 and 6 are not guilty and accordingly they were acquitted. The case against the petitioners were split up and the same now stands refiled as C.C No. 914/2019 and is pending before the Judicial First Class Magistrate Court-III, Neyyattinkara. This Crl.M.C is filed for quashing all further proceedings pursuant thereto. 3. Heard Sri.Ajit G Anjarlekar, the learned counsel appearing for the petitioners, Sri.C.S Hrithwik, the learned Public Prosecutor appearing for the State. 4. The main contention put forward by the learned counsel for the petitioners is that, consequent to the order of acquittal passed by the learned Magistrate in respect of the accused Nos. 1,3 and 6, the substratum of the prosecution case is lost and hence continuation of the prosecution against the petitioners is a waste of time. Reliance was also placed on the principles laid down Crl.M.C No. 4753 of 2022 5 by this Court in **Moosa v. Sub Inspector of Police** [2006(1) KLT 552]. 5. On the other hand, the learned Public Prosecutor would oppose the aforesaid contention. It is pointed out that, merely because of the reason that, some of the co-accused were acquitted, that cannot lead to the conclusion that the petitioners are entitled for an order for quashing the proceedings against them. The role of the petitioners are to be considered in the trial which is yet to take place. Hence dismissal of the Crl.M.C has been sought for. 6. I have gone through the records and heard the arguments from either side. In paragraph 17 of Annexure-M judgment, the learned Magistrate has considered the evidence that was adduced by the prosecution to establish their case. It is discernible therefrom that all the independent witnesses examined by the prosecution turned hostile. The prosecution was mainly relying upon the evidence of PWs 1, 2, 9 and 10 who were police officers whose duties were alleged to have been obstructed by the accused. The crucial evidence was that of PWs1 and 2. On appreciating the evidence of the aforesaid witnesses, the learned Crl.M.C No. 4753 of 2022 6 Magistrate specifically took note of some glaring discrepancies and contradictions between them. While PW1 stated that, one of the accused hit on PW2's stomach, the PW2 in his deposition had stated that, it was the 1[st] accused who committed the assault by hitting on his face and chest with a wooden plank. It is specifically observed by the learned Magistrate that, the aforesaid statement not only contradicts the deposition of PW1 that is also against the contents of the FIS as well. Similarly, serious discrepancies and inconsistencies were noted in the version of PW9 as well, with regard to the sequence of events that occurred during the course of the incident. It is also discernible from the entire evidence of the above witnesses that, apart from the 1[st] accused no other accused could be identified by any of the said witnesses. Presumably, the identification of the 1[st] accused was on account of the reason that he was arrested from the spot by the police. Thus, on account of the inconsistencies and contradictions between the evidence of PWs 1, 2, 9 and 10, a definite conclusion was arrived by the learned Magistrate to the effect that the prosecution miserably failed in establishing the case advanced by the prosecution. On careful scrutiny of the materials placed on record Crl.M.C No. 4753 of 2022 7 and findings arrived by the learned Magistrate in Annexure-M judgment, it is evident that, the prosecution case as such was found to be not correct. Therefore, the said findings will have the impact of destroying the substratum of the case of prosecution. 7. In such circumstances, I am of the view that, this is a fit case in which the principles laid down by this Court in **Moosa** 's case can be applied and the proceedings be quashed invoking the powers of this Court under Section 482 Cr.P.C. In the result, this Crl.M.C is allowed. Annexure-B final report submitted in Crime No. 458/2007 of Balaramapuram Police Station and all further proceedings pursuant thereto including the proceedings in C.C No. 914/2019 pending before the Judicial First Class Magistrate Court-III, Neyyatinkara as against the petitioners are hereby quashed. Sd/- **ZIYAD RAHMAN A.A. JUDGE** rpk Crl.M.C No. 4753 of 2022 8 ## **APPENDIX OF CRL.MC 4753/2022** PETITIONER ANNEXURES Annexure A A CERTIFIED COPY OF THE F.I.R DATED 27/12/2007 IN CRIME NO: 458 OF 2007 OF BALARAMAPURAM POLICE STATION, THIRUVANANTHAPURAM Annexure B A CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO: 458 OF 2007 OF BALARAMAPURAM POLICE STATION, THIRUVANANTHAPURAM Annexure C A CERTIFIED COPY OF THE DEPOSITION OF PW 1 IN CC NO: 306 OF 2008 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-III, NEYYATTINKARA. Annexure D A CERTIFIED COPY OF THE DEPOSITION OF PW 2 IN CC NO: 306 OF 2008 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-III, NEYYATTINKARA - Annexure E A CERTIFIED COPY OF THE DEPOSITION OF PW 3 IN CC NO: 306 OF 2008 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-III, NEYYATTINKARA Annexure F A CERTIFIED COPY OF THE DEPOSITION OF PW 4 IN CC NO: 306 OF 2008 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-III, NEYYATTINKARA Annexure G A CERTIFIED COPY OF THE DEPOSITION OF PW 5 IN CC NO: 306 OF 2018 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-III, NEYYATTINKARA Annexure H A CERTIFIED COPY OF THE DEPOSITION OF PW 6 IN CC NO: 306 OF 2008 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-III, Crl.M.C No. 4753 of 2022 9 ## NEYYATTINKARA Annexure I A CERTIFIED COPY OF THE DEPOSITION OF PW 7 IN CC NO: 306 OF 2008 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-III, NEYYATTINKARA Annexure J A CERTIFIED COPY OF THE DEPOSITION OF PW 8 IN CC NO: 306 OF 2008 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-III, NEYYATTINKARA Annexure K A CERTIFIED COPY OF THE DEPOSITION OF PW 9 IN CC NO: 306 OF 2008 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-III, NEYYATTINKARA Annexure L A CERTIFIED COPY OF THE DEPOSITION OF PW 10 IN CC NO: 306 OF 2008 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-III, NEYYATTINKARA Annexure M A CERTIFIED COPY OF THE JUDGMENT DATED 24/05/2019 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-III, NEYYATTINKARA IN CC NO: 306 OF 2008