Sajeer et al. v. State of Kerala

1 CRL.MC NO. 4666 OF 2022 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 9[TH] DAY OF OCTOBER 2023 / 17TH ASWINA, 1945** **CRL.MC NO. 4666 OF 2022** **AGAINST THE ORDER/JUDGMENT CC 233/2022 OF JUDICIAL MAGISTRATE** **OF FIRST CLASS ,NADAPURAM** ## **PETITIONER/S:** 1 SAJEER AGED 39 YEARS S/O. MOIDU, VADAKKAN PILAVIL THAZHE KUNIYIL HOUSE, KULANGARATH, KAKKATTIL, VADAKARA, KOZHIKODE, PIN - 673101 2 ASEES AGED 59 YEARS S/O. KUNHAMMAD, PARACHALIL HOUSE, KUNNUMMALAMSOM VADAKARA, KOZHIKODE, PIN - 673101 3 ANAS AGED 34 YEARS S/O. ASEES, PARACHALIL HOUSE, KUNNUMMAL, VADAKARA, KOZHIKODE, PIN - 673101 4 MUSTHAFFA.P.T.K AGED 59 YEARS S/O. PATHUTTY, PUTHUCHALILTHAZHEKUNI HOUSE, KULANGARATH, NARIKKATTERI VADAKARA, KOZHIKODE, PIN - 673101 5 SHAHEEL AGED 34 YEARS S/O. AMMAD, KALLUVETTUKUZHIYIL HOUSE, NARIPPATTA ROAD, KAKKATIL, VADAKARA, KOZHIKODE, PIN - 673101 6 NOUFAL AGED 31 YEARS S/O. PARIYAI, PUTHIYEDUTH HOUSE, INFRONT OF KULANGARATHPUBLIC ROAD. KULANGARATH, VADAKARA, KOZHIKODE, PIN - 673101 7 JAMSHEER AGED 31 YEARS CRL.MC NO. 4666 OF 2022 2 S/O. KUNHAMMAD MUNDAPILAKKOOL HOUSE, KULANGARATH, VADAKARA, KOZHIKODE, PIN - 673101 8 C.I.FYSAL AGED 46 YEARS S/O. MOIDU, CHERIYATHAYYIL HOUSE, KUTTIPRAM, NARIKKATTERI, VADAKARA, KOZHIKODE, PIN - 673101 9 RAFFI, AGED 41 YEARS S/O. ABDULLA, MADHUMMAL HOUSE, KUTTIPRAM, NARIKKATTERI, VADAKARA, KOZHIKODE, PIN - 673101 10 MUHAMMAD RAFFI AGED 40 YEARS S/O. KUNHABDULLA CHOLERI HOUSE, KUTTIPRAM, CHELAKKAD, VADAKARA, KOZHIKODE, PIN - 673101 11 NOUSHID, AGED 31 YEARS S/O. IBRAYI, KOROTH HOUSE, KUNNUMALAMSOM, CHELAKKAD, VADAKARA, KOZHIKODE, PIN - 673101 12 ABDUL SALAM AGED 42 YEARS S/O. IBRAYI, KODIYAMGOTT HOUSE, KUTTIPRAM, NARIKKATTERI, VADAKARA, KOZHIKODE, PIN - 673101 BY ADV SHARAN SHAHIER STATE OF KERALA REPRESENTED PUBLIC PROCECUTOR, HIGH COURT OF KERALA, KOCHIN, PIN - 682031 BY ADV PUBLIC PROSECUTOR ## **RESPONDENT/S:** ## **OTHER PRESENT:** SRI.M.P.PRASANTH, PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 3 CRL.MC NO. 4666 OF 2022 **P.V.KUNHIKRISHNAN, J --------------------------------------Crl.M.C. No. 4666 of 2022 -------------------------------------Dated this the 9[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 petitioners are the accused in CC No. 233/2002 on the file of the Judicial First Class Magistrate Court-I, Nadapuram arising from Crime No. 450/2011 of Kuttiyadi Police Station. The above case is chargesheeted alleging offences punishable under Secs. 143, 147, 148 , 506, 341, 427, 153(A) r/w Sec. 149 IPC.' 3. It is submitted that the co-accused are already acquitted and no purpose will be served, if the prosecution against the petitioners are continued. 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 4 CRL.MC NO. 4666 OF 2022 continuation of the trial against the petitioner/s 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 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/s 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: 5 CRL.MC NO. 4666 OF 2022 “On analysing the evidence of the prosecution, it is seen that PW12 who was brought by the prosecution to prove the alleged offence U/s. 153 A of IPC. PW12 deposed that the accused persons hurled threatening words to promote communal enmity between two groups but he failed to depose how it resulted- in promoting enmity between two religious groups. PW1, PW2 and PW3 also failed to depose how the words used by the accused, resulted in promoting enmity between two religious groups. 19. Section 153 A (1) of the Indian Penal Code consist three clauses; But clauses (a) and (b) alone are relevant in the instant case. Clauses (a) and (b) of section 153 A IPC are extracted below:- "153A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language etc., and doing acts prejudicial to maintenance of harmony. (1) Whoever- a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, cast or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or b) Commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity. 6 CRL.MC NO. 4666 OF 2022 Regarding the ingredients of section 153 A of IPC, the Hon'ble High Court of Kerala observed in Bijumon Vs. State of Kerala and Another 2018 (4) KHC 73 as follows, "The essence of the offence U/S 153 A IPC is promoting enmity between different groups on grounds of religion, race, place of birth, residence etc. and doing acts prejudicial to maintenance of harmony. Real intention to incite one group or community against another is absolutely essential. It is necessary that at least two groups of communities should be involved. Merely inciting the feelings of one community or group without any reference to any other community or group cannot attract the provisions of S.153 A of IPC". In the instant case, from the evidence of PW1, PW2, PW3 and PW12 it is seen that the comments made by the accused were only with regard to one religion or community. Here in this case, as the comments made by the accused refer only to one religion or community, the mere fact that the accused are Muslims or Mappilas is not sufficient to attract the offence punishable U/s. 153 A of IPC. There is no evidence adduced by the prosecution to show that the intention of the accused was to incite one group or community (Muslim - Mappilas) against the another (Ezhavas). Therefore, prima facie, the offence punishable U/s. 153 A IPC is not attracted against the accused in this case. 20. Another offence alleged against the accused in this case comes U/s. 427 of IPC. To prove the offence alleged U/s. 427 of IPC. The prosecution has to prove the following points:- (1) that the thing in question was property; (2) that the accused caused its destruction or such change therein, or in the situation thereof, as has destroyed or diminished its value or utility, or affected it injuriously; 7 CRL.MC NO. 4666 OF 2022 (3) that the accused did so intending, or knowing that he was likely to cause loss or damage to the public or to any person. - (4) that such loss or damage was wrongful; (5) that the loss or damage amounts at least to Rs.50/When prosecution fails to prove that the accused had any intention of causing loss to the complainant nor is there any evidence as to the exact value of the property which is alleged to have been damaged, the case does not come either under Sec. 426 or Sec. 427 of the Indian Penal Code. In the instant case, the prosecution did not examine the owner of the bus to prove the exact loss caused to him. During the examination of PW7 prosecution also failed to adduce evidence regarding the exact value of damage caused in this case. Even in Ext.P5 Certificate issued by PW7; the column No. 16 which has to show the name and address of owner was left blank. Hence in the present case there was no evidence as to the exact value of the property which is alleged to have been damaged. Moreover the damaged property, i.e, the 'Good Day' bus was not produced before the court by the police. There is no records produced from the side of prosecution, to show that whether the property was entrusted with the owner after the investigation. Non-examination of the registered owner, by the prosecution creates a lacuna in the prosecution case and they are failed to prove the exact damage caused in this case and the damage is caused to a particular person, i.e the owner of the bus. Hence the prosecution failed to prove the ingredients of the offence alleged u/s. 427 of IPC against all the accused. 21. The remaining offences alleged against the accused in this case are U/s.-143, 147, 148, 341, 506 (ii) r/w 149 of IPC. 8 CRL.MC NO. 4666 OF 2022 Section 143 IPC provided for the punishment for a member of an unlawful assembly and section 147 IPC provided for punishment for rioting, ie, whenever force or violence is used by an unlawful assembly, or by any member thereof in prosecution of the common object of such assembly. The offence U/s. 148 IPC provided for punishment for rioting armed with deadly weapon. Section 149 IPC provided that if an offence committed by any member of an unlawful assembly in prosecution of the common object of that assembly; every person who at the time of committing of that offence; if a member of the same assembly is guilty of that offence. Section 341 IPC provides that for punishment of wrongful restraint, i.e whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed. Section 506 (ii) IPC provides for punishment for criminal intimidation if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, to cause an offence punishable with death or imprisonment for life or with imprisonment for a term which may extent to 7 years, or to impute, unchastity to a women. 22. Proving the said offences, a clear identification of the accused by the prosecution witnesses shall be necessary to rope them with the alleged offences. In the instant case PW1, PW2 and PW12 failed to identify the accused before the court. Moreover PW3 who identified the accused in the court, failed to identify particularly each and every accused. In the instant case PW3 had seen all the accused only for the first time in his life and that is for only a short time. During the chief examination of PW3, he failed to depose about the exact features of all the accused in the court. Hence the identification of all the accused by PW3 for the first time in 9 CRL.MC NO. 4666 OF 2022 the court cannot be taken into account to connect the accused with the said offences. Hence I am of the view that solely relying on the identification of all the accused by PW3; it cannot be safely concluded that all the accused had committed the crime in question. 23. Presently, there are eight persons facing trial in this case. It is seen from the final report that there were altogether twenty persons arrayed in this case as accused and the investigating officer filed report regarding the details of all the accused in this case. Here it is worthwhile to note that the investigation agency failed to conduct a Test Identification Parade in this case, even though they got ample opportunity to conduct the same. Non conducting of Test Identification Parade is creating another lacuna upon the prosecution case. In State of Kerala Vs. Unni [2018 KHC. 620] the Hon'ble High Court of Kerala observed that "though the absence of conducting (T.I.P) Test Identification Parade is not fatal to the prosecution case; in the instances where witnesses have seen the accused only for the first time in his life, and for a short time, if they could not give any identifying features, the investigation agency should resort to T.I.P". The Hon'ble High Court further observed that the main object of holding an identification parade during investigation stage is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. In the instant case PW1, PW2 and PW3 have seen all the accused only for the first time in their life and that is for only a short time. PW3 who is a native of Kunnamkulam had claimed to be identified the accused on sight. But during the chief examination of PW3, he failed to depose about the exact features of the accused 10 CRL.MC NO. 4666 OF 2022 in the court. Hence the identification of the accused who were seen by the witness by a glimpse from a crowd of twenty persons or more cannot be taken into account to connect the accused with the alleged crime. 24. The above facts coupled with the fact that there was an unexplained delay of one day to file the FIS before the police, even though the police party reached the place of occurrence immediately after the incident leads to the conclusion that the prosecution failed to establish that all the accused committed the offences alleged against them. Hence these points are answered against the prosecution. 25. From the above discussion, I am of the view that the prosecution did not satisfactorily establish the fact that all the accused formed themselves into an unlawful assembly and committed rioting; committed rioting armed with deadly weapon; wrongfully restrained the passengers and workers of the Good Day bus; threatened to kill them; promoted enmity between two different groups and caused damage of Rs.50 or more to the 'Good Day bus. Hence these 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. Hence this Criminal Miscellaneous Case is allowed. All CRL.MC NO. 4666 OF 2022 11 further proceedings against the petitioners alone in CC No. 233/2002 on the file of the Judicial First Class Magistrate Court-I, Nadapuram arising from Crime No. 450/2011 of Kuttiyadi Police Station are quashed. **Sd/P.V.KUNHIKRISHNAN JUDGE** SKS CRL.MC NO. 4666 OF 2022 12 ## **APPENDIX OF CRL.MC 4666/2022** PETITIONER ANNEXURES Annexure 1 CERTIFIED OF THE CHARGESHEET DATED 22.08.2011 IN CRIME NO. 450/2011 KUTTIYADI POLICE STATION, KOZHIKODE DISTRICT Annexure 2 A TRUE COPY OF THE JUDGMENT DATED 21.03.2022 IN CC 815/2015 PASSED BY THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE -I, NADAPURAM