Sajith S/O Sathyan and others v. The State of Kerala represented by Public Prosecutor and Pramod (impleaded)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 11[TH] DAY OF SEPTEMBER 2023 / 20TH BHADRA, 1945 CRL.MC NO. 5364 OF 2021 AGAINST THE ORDER/JUDGMENT CC 1607/2017 OF JMFC, KAKKANAD (TEMPORARY)** ## **- - PETITIONER/ACCUSED 2 4 & 6 10:** 1 SAJITH S/O.SATHYAN, CHANDRA BHAVAN, VADAKKEVILAYIL, VADAKKEVILA VILLAGE, KOLLAM DISTRICT, PIN-691010. 2 MAHESH, S/O.K.P.YATHEENDRANATH, ALISSERY, KAKKARAYIL HOUSE, KADAPPURAM KARA, ALAPPUZHA, PIN-688561. 3 RAMSHID, S/O.EBRAHIM, KUNNATHUKAYAL HOUSE, CHETTUVA KARA, ENGANDIYOOR, THRISSUR DISTRICT, PIN-680615. 4 ALAJ, S/O.JOSEPH, ENJANANIYIL HOUSE, VETTILAPPANA, AREEKKOTTUKARA, KARUNGATTERI VILLAGE, MALAPPURAM, PIN-673631. 5 RIMSHAD, S/O.SHAMSUDHEEN, ANUGRAHA HOUSE, AKKIKKAVIL, KARIKKAD VILLAGE, THRISSUR-680519. 6 ARJUN, S/O.NARAYANAN, A4 CHEMBAKA HOUSING COLONY, CHEVAYOOR VILLAGE, KOZHIKODE-673017. 7 VIJITHLAL, S/O.RAVEENDRAN, CHEERAG HOUSE, CHEMBRA ROAD, PERAMBRA VILLAGE, KOZHIKODE-673525. 8 MUHAMMED SHARNI, S/O.K.M.SHAMSUDHEEN, KALLUNGAL HOUSE, ANAKKAL KARA, KANJIRAPPILLY PANCHAYAT, KOTTAYAM-686507. BY ADVS. C.A.CHACKO C.M.CHARISMA Crl.M.C.No.5364 of 2021 2 ## **RESPONDENT/COMPLAINANT:** 1 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2 SHRI.PRAMOD, AGED 45 YEARS S/O CHANDRAN NAIR, KRISHNA MANDIRAM, EAST OF THRIKKAKKARA TEMPLE, VAZHAKKALA VILLAGE, ERNAKULAM, PIN: 682021 (IS IMPLEADED AS PER ORDER DATED 10/6/22 IN CRL.M.A1/22 IN CRL.M.C5364/21) THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.5364 of 2021 3 ## **P.V.KUNHIKRISHNAN, J.** **------------------------------** **Crl.M.C.No.5364 of 2021 ---------------------------------------------Dated this the 11[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. Petitioners are the accused in C.C.No.1607/2017 on the file of the Judicial First Class Magistrate Court, Kakkanad arising from Crime No.340/2006 of Thrikkakara Police Station. The above case is charge sheeted against the petitioners alleging offences punishable under Sections 143, 147, 148, 341, 324 and 326 r/w Section 149 IPC. Crl.M.C.No.5364 of 2021 4 3. It is submitted that the co-accused were acquitted as per Annexure A3 judgment and in the light of Annexure A3, the proceedings against the petitioners are 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. 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** Crl.M.C.No.5364 of 2021 5 **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 petitioners 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: “Point No.1:- The defacto complainant was examined as PW1 and his F.I Statement was marked as ExtP1. PW1 did not supported the Crl.M.C.No.5364 of 2021 6 prosecution case and did not identify the accused before the court. He stated that the accused wherein had not attacked him. PW2 is an eye witness to the occurrence. But he also not supported the prosecution and did not identify the accused before the Court. The complainant did not supported the prosecution case. The other witnesses were not examined by the prosecution. There is no evidence to prove that A1 and A5 had committed the aforesaid offences. Hence they cannot be found guilty. The point is answered against the prosecution. 7. Point No.2:- In view of my finding on Point No.1, A1 and A5 are acquitted U/s. 248(1) Cr.P.C. Their bail bond stands cancelled and they are set at liberty forthwith. Case against A2 to A4 and A6 to A10 are refiled as C.C. 591/2011.” 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 Crl.M.C.No.5364 of 2021 7 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 against the petitioners in C.C.No.1607/2017 on the file of the Judicial First Class Magistrate Court, Kakkanad arising from Crime No.340/2006 of Thrikkakara Police Station are quashed. DM Sd/- **P.V.KUNHIKRISHNAN JUDGE** Crl.M.C.No.5364 of 2021 8 ## **APPENDIX OF CRL.MC 5364/2021** PETITIONER ANNEXURES ANNEXURE A1 CERTIFIED COPY OF FIR IN CRIME NO.340/2006 OF THRIKKAKARA POLICE STATION ALONG WITH FIS. ANNEXURE A2 CERTIFIED COPY OF FINAL REPORT IN CRIME NO.340/2006 OF THRIKKAKARA POLICE STATION. ANNEXURE A3 TRUE COPY OF JUDGMENT DATED 20.05.2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ALUVA IN C.C.NO.3264/2007. RESPONDENTS EXHIBITS :NIL //TRUE COPY// PA TO JUDGE