Sasikumar v. Sub Inspector of Police, Town East Police Station, Thrissur and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 20[TH] DAY OF DECEMBER 2023 / 29TH AGRAHAYANA, 1945** **CRL.MC NO. 5269 OF 2020** **CRIME NO.2429/2011 OF Town East Police Station, Thrissur AGAINST THE ORDER/JUDGMENT CC 123/2020** ## **PETITIONER/6TH ACCUSED:** SASIKUMAR AGED 53 YEARS S/O.VASU, KONIPARAMBIL HOUSE, PERINGANDOOR, THRISSUR -680 581 BY ADVS. K.M.SATHYANATHA MENON SRI.ARUN AJAY SHANKAR SRI.JIKKU SEBAN GEORGE ## **RESPONDENTS/COMPLAINANT AND STATE:** 1 THE SUB INSPECTOR OF POLICE TOWN EAST POLICE STATION, THRISSUR-680 001 2 STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031 BY ADV. SRI. RENJITH T.R., PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20.12.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.5269 of 2020 2 **P.V.KUNHIKRISHNAN, J. ------------------------------** **Crl.M.C.No.5269 of 2020 ---------------------------------------------Dated this the 20[th] day of December, 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. Petitioner is the 6[th] accused in Crime No.2429/2011 of Town East Police Station, Thrissur which is now pending as C.C.No.123/2020 on the file of the Special Additional Chief Judicial Magistrate Court, Thrissur. 3. It is submitted that the co-accused were already acquitted as per Annexure C judgment. It is submitted that, in the light of the same, the Crl.M.C.No.5269 of 2020 3 continuation of the proceedings against the petitioner is an abuse of process of court. 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 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 Crl.M.C.No.5269 of 2020 4 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 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 Annexure C judgment by which the co-accused is acquitted: “5. On the side of the prosecution the de facto complainant was examined as PW1 and marked documentary evidence Ext. P1 and P2. He along with the accused filed a petition for compounding the offences with a petition for permission. His statement was also recorded therein. Others were given up by the learned Assistant Public Prosecutor. As there is no incriminating circumstances appeared against the accused in the prosecution evidence their examination Crl.M.C.No.5269 of 2020 5 U/s 313 (1)(b) Cr.P.C. was dispensed with. They did not adduce any evidence. 8. Points.3 to 7:-Considering the facts and circumstances of the case and available evidence of record these points can be considered together. The sole witness examined, PW1 is the defacto complainant and he proved Ext.P1 complaint. The Sub Inspector of police, Thrissur Town East Police Station registered the above crime on the basis of the said complaint and on investigation filed charge sheet against the accused alleging commission of the aforesaid offences. However, PW1 has turned hostile to the prosecution. In the evidence he has stated that he had invested Rs.1,30,000/- in TIK Innovators Marketing Limited Company for getting products and that he obtained products for the said amount. He has stated that there is no amount due to her in the said transaction. 9. With the permission of the Court, the learned Assistant Public Prosecutor has invoked the power under proviso to sec.162 Cr.P.C. and Sec.154 of the Evidence Act. Though PW1 was invited with the previous statements in Ext.P1 complaint and also recorded by the investigating officer, he denied all those statements and there is nothing brought ought from his evidence to incriminate the accused in the commission of the offences. Ext.P2 is a portion of his Crl.M.C.No.5269 of 2020 6 statement recorded U/s.162 CrPC. It is said that Ext.P1 complaint was filed in a mistaken notion. He further stated that the matter has been settled and he has no further grievance against the accused. He denied the suggestion that he is falsely giving evidence only to support the accused. Considering the fact that the matter has been settled between the parties and the nature of the evidence given by the sole material witness, the remaining witnesses were rightly given up by learned Assistant Public Prosecutor. I am also satisfied that the examination of those witnesses will not serve any purpose. So, from the available evidence on record the prosecution has not succeeded in proving the guilt of the accused. As such no doubt the points under consideration are only to be answered against the prosecution. The points are answered accordingly.” 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 coaccused. 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. Crl.M.C.No.5269 of 2020 **==> picture [10 x 8] intentionally omitted <==** Therefore, this Crl.M.C can be allowed. Hence this Criminal Miscellaneous Case is allowed. All further proceedings against the petitioner in C.C.No.123/2020 on the file of the Special Additional Chief Judicial Magistrate Court, Thrissur are quashed. Sd/- DM **P.V.KUNHIKRISHNAN JUDGE** Crl.M.C.No.5269 of 2020 8 ## **APPENDIX OF CRL.MC 5269/2020** ## PETITIONER ANNEXURES |ANNEXURE A|CERTIFIED COPY OF THE COMPLAINT| |---|---| ||FILED AS M.P.NO.8780/11 DATED| ||29.11.2011 BEFORE THE CHIEF JUDICIAL| ||MAGISTRATE, THRISSUR| |ANNEXURE B|CERTIFIED COPY OF OF THE FINAL| ||REPORT SUBMITTED BY THE 1ST| ||RESPONDENT IN CRIME NO.2429/2011| ||BEFORE BEFORE THE CHIEF JUDICIAL| ||MAGISTRATE COURT, THRISSUR| |ANNEXURE C|CERTIFIED COPY OF THE JUDGMENT IN| ||C.C.NO.18/2014 DATED 20.1.2016 ON| ||THE FILES OF COURT OF THE SPECIAL| ||ADDITIONAL<br>CHIEF<br>JUDICIAL| ||MAGISTRATE, THRISSUR| |ANNEXURE D|TRUE COPY OF THE JUDGMENT DATED| ||28.10.2019 IN CRL.M.C.NO.6511 OF| ||2019 OF THIS HONOURABLE COURT| |RESPONDENTS|EXHIBITS<br>: NIL| ||//TRUE COPY//<br>PA TO JUDGE|