Sarath Prasad @ Kittunni v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` FRIDAY, THE 1[ST] DAY OF DECEMBER 2023 / 10TH AGRAHAYANA, 1945 ``` ``` CRL.MC NO. 9682 OF 2023 ``` ``` CRIME NO.523/2012 OF Varkala Police Station, Thiruvananthapuram AGAINST THE ORDER/JUDGMENT CC 3152/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,VARKALA ``` ## **`PETITIONER/ACCUSED No.5:`** ``` SARATH PRASAD @ KITTUNNI AGED 35 YEARS SON OF S PRASAD, RESIDING AT 'ASA NIKETHAN' VETTOOR-CHERUNNIYOOR, VARKALA, THIRUVANANTHAPURAM, PIN - 695312 BY ADVS. AKASH S. GIRISH KUMAR M S ``` ## **`RESPONDENT/STATE/DEFACTO COMPLAINANT:`** ``` 1STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2SUSHEENDRAN AGED 56 YEARS SON OF SOMAN, RESIDING AT S S LAND, KALLUSHAPPUMUKKU, VILABHAGOM, VARKALA, THIRUVANANTHAPURAM, PIN - 695307 ``` ``` SRI MP PRASANTH, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01.12.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 9682 OF 2023 ``` ``` 2 ``` ## **P.V.KUNHIKRISHNAN, J. -------------------------------Crl.M.C. No. 9682 of 2023** **---------------------------------------------Dated this the 1[st ] day of December, 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 petitioner is the 5[th] accused in Crime No. 523/2012 on the file of Varkala Police Station, Thiruvananthapuram which is now pending as CC No. 3152/2021 on the file of Judicial First Class Magistrate Court, Varkala. The petitioner and the other accused were charge sheeted alleging offences punishable under Sections 143, 147, 501(B), 447, 294(b), and 506(ii) read with 149 IPC. It is submitted that the co-accused were already acquitted as per Annexure A3 judgment and the continuation of proceedings against the petitioner is an abuse of process of court. 3. The prosecution case is that the petitioner, along with eight others, on account of the enmity that the de-facto ``` CRL.MC NO. 9682 OF 2023 ``` ``` 3 ``` complainant had complained to police against their anti-social activities, had, on 12.05.2012, pasted posters that would defame the de-facto complainant and that the nine accused persons formed themselves into an unlawful assembly on the next day and criminally trespassed into the house of the de-facto complainant, committed rioting and used obscene words against and criminally intimidated the de-facto complainant. 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 continuation of the trial against the petitioner 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** ``` CRL.MC NO. 9682 OF 2023 ``` ``` 4 ``` **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 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: _“13. Heard the rival contentions. In this case the defacto complainant has admitted that he has not witnessed the actual incident. However, he deposed before the Court as if he has witnessed the entire incident. The incident happened at 3.15 p.m on 13.05.2012, PW3 informed the matter to PW2 on phone. PW2 deposed that he gave statement to the Police at 5.30 p.m on the same day. In Ext.Pl First Information Statement PW2 has clearly mentioned the names of the accused persons. He arrived at his home only at 7 p.m on the relevant date. If the sequence of events narrated by the PW2 is true, it is to believed that PW2 gave complaint to the Police_ ``` CRL.MC NO. 9682 OF 2023 ``` ``` 5 ``` _solely based on the information provided by the PW3. PW3 has stated that he did not know the names and address of the accused persons. Hence, the question remains how the PW2 mentioned the names of the accused persons before the Police. A conjoint reading of the evidence of PW2 and PW3 reveals that the PW2 gave Ext.PI First Information Statement without properly identifying the accused persons. It appears that the PW2 gave First Information Statement solely based on his inference that the accused persons are trouble makers. It is to be noted that in this case Police have not arrested the accused persons and got them identified by the witnesses. When a good number of persons are allegedly involved in a case, proper identification of the accused is necessary. That is not seen done by the Police, which is a serious lacunae in the prosecution ease. Further, as per version of the PW3, the accused persons barged into the house of the defacto complainant. However, the defacto complainant has no such case. Hence, it is doubtful whether the PW3 had actually witnessed the incident as claimed by him._ _14. Further, in this case, the defacto complainant stated that her wife was present at the time of the alleged incident. However, she has not been examined. The prosecution has not offered any explanation for not examining the wife of the defacto complainant, who could have been a best witness. Thus, the prosecution failed to produce best evidence, which in my view adversely affects the prosecution case_ _15. According to the defacto complainant, on misconception that the defacto complainant had reported the anti social activities of the accused persons, they have pasted defamatory posters against him following which the alleged_ ``` CRL.MC NO. 9682 OF 2023 ``` ``` 6 ``` _incident happened. But no such posters are recovered. There is no evidence to prove that there were complaints against the accused persons for the anti social activities allegedly committed by them. Unfortunately, in this case, the Police officer who conducted the investigation died before giving evidence before the Court. PW4 is the Station House Officer attached to Varkala Police station and he laid final report in the matter. He has not stated that there were complaints against the accused persons. Hence, the motive behind the alleged incident remains elusive._ _16. Further, the alleged incident happened on 13.05.2012 and first information was lodged only on 16.05.2012. The reason for the delay has not been explained by the prosecution. Honourable Supreme Court of India in Krishnan v. State: AIR 2003 SC 2978 pointed out that FIR filed immediately after occurrence rules out any possibility of any false implication. Further PWI is examined as occurrence witness, but he disowned the prosecution case. Hence, the only direct evidence available is the evidence of PW3. As already found his evidence does not inspire confidence. Considering the evidence on record, I am of the view that the Prosecution failed establish the guilt of the accused persons (except A3 and A5). These points are found against the Prosecution.”_ 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 ``` CRL.MC NO. 9682 OF 2023 ``` ``` 7 ``` 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 against the petitioner in CC No. 3152/2021 on the file of Judicial First Class Magistrate Court, Varkala arising from Crime No. 523/2012 of Varkala Police Station are quashed. **Sd/-** ## **P.V.KUNHIKRISHNAN JUDGE** sms ``` CRL.MC NO. 9682 OF 2023 ``` ``` 8 ``` ## **`APPENDIX OF CRL.MC 9682/2023`** ``` PETITIONER ANNEXURES Annexure ITHE CERTIFIED COPY OF THE RELEVANT EXTRACT OF THE FIRST INFROMATION REPORT MAINTAINED AT THE VARKALA POLICE STATION IN CRIME NO. 523 OF 2012 DATED 16.05.2012 Annexure IITHE CERTIFIED COPY OF THE FINAL REPORT SUBMITTED BY THE INVESTIGATING OFFICER, VARKALA POLICE STATION IN CRIME NO. 523 OF 2012 DATED 15.11.2012 Annexure IIITHE TRUE COPY OF THE JUDGMENT OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT - I, VARKALA DATED 30.04.2021 Annexure IVTHE TRUE COPY OF THE RELEVANT PAGES OF THE PETITIONER'S PASSPORT ```