Shahul Hameed & Mansoor v. State of Kerala & Sub Inspector of Pattambi Police Station

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` THURSDAY, THE 2[ND] DAY OF JUNE 2022 / 12TH JYAISHTA, 1944 CRL.MC NO. 2502 OF 2020 ``` ``` LP 37/2019 OF ADDITIONAL SESSIONS COURT, OTTAPALAM CRIME NO.195/2013 OF PATTAMBI POLICE STATION, PALAKKAD ``` ## **`PETITIONER/ACCUSED:`** ``` 1SHAHUL HAMEED AGED 33 YEARS S/O.USMAN, POTTANAMCHALIL HOUSE, PERUMMUDIYOOR, PATTAMBI, PALAKKAD DT ``` ``` 2MANSOOR AGED 36 YEARS S/O MUHMMEDALI, KARUTHANATHODIYIL HOUSE, PERUMUDIYOOR, PATTAMBI, PALAKKAD DT ``` ``` BY ADV A.HAROON RASHEED ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** ``` 1STATE OF KERALA THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2SUB INSPECTOR OF POLICE, PATTAMBI POLICE STATION, PALAKKAD DISTRICT, BY ADV. ``` ``` PRASANTH.M.P- P.P ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.06.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 2502 OF 2020 ``` ``` 2 ``` ## **`ORDER`** The petitioners are the accused Nos.4 and 17 in Crime No.195/2013 of Pattambi Police Station. The offences alleged against the petitioners and other accused are under Sections 143, 147, 148, 447, 323, 324 and 308 read with Section 149 of Indian Penal Code. 2. The prosecution case is that, the accused persons total 17 in numbers, on 20.02.2013 formed themselves into an unlawful assembly, armed with deadly weapons such as wooden sticks, iron sticks and stone etc. trespassed into the residential building of CW1, threatened him, and assaulted, thereby causing injuries to him. Annexure A1 is the final report submitted by the Police after conducting investigation. Initially the aforesaid case was tried by the Additional Sessions Court, Ottappalam as S.C. No.659/2015 and it culminated in Annexure A2 judgment. In the aforesaid Sessions Case all the accused persons except petitioners herein have participated. The case against the petitioners were ``` CRL.MC NO. 2502 OF 2020 ``` ``` 3 ``` spilt up and the same was included in the Long Pedency Register as L.P.No.37/2019 by the learned Sessions Judge. This Crl.M.C. is filed for quashing all further proceedings against the petitioners. 3. Heard Sri.A.Haroon Rasheed, learned counsel for the petitioners, Sri.Prasanth M.P., learned Public Prosecutor appearing for the State. 4. When the Crl.M.C came up for admission, taking note of the fact that, the petitioners were absconding, a direction was issued on 26.11.2020 whereby the petitioners were directed to surrender before the Additional Sessions Court, Ottappalam and to move the application for bail. It is reported that in compliance of the aforesaid direction, the 1[st] petitioner /4[th] accused alone had surrendered and upon his surrender the case against him stands refiled as S.C.No.141/2021. The proceedings against the 2[nd] petitioner/17[th] accused are even now remaining in Long Pendency Register. ``` CRL.MC NO. 2502 OF 2020 ``` ``` 4 ``` 5. The learned counsel for the petitioner contends that, consequent to the finding of acquittal entered by the learned Sessions Judge as evidenced by Annexure A2, the substratum of the case itself is lost and therefore, no fruitful purpose would be served by allowing continuation of prosecution as against the petitioners herein. 6. On the other hand, the learned Public Prosecutor would oppose the aforesaid findings. It was pointed out that a question of involvement of the petitioners is a matter to be considered during the course of trial and merely because of the reason that the other accused persons were acquitted, the proceedings against the petitioners herein cannot be terminated. With respect to the 2[nd] petitioner it was pointed out that, he is not entitled for any relief as he is even now absconding and thereby evading the process of law. In such circumstances, it is pointed out by the learned Public Prosecutor that, even going by the principles laid down by this Court in **Moosa v. Sub Inspector of** ``` CRL.MC NO. 2502 OF 2020 ``` ``` 5 ``` **Police** [2006(1) KLT 552], the jurisdiction of this Court need not be invoked in respect of persons who are absconding. In such circumstances, dismissal of this Crl.M.C. is sought for. 7. I have gone through the contents of Annexure A1 final report and also carefully perused the observations and findings of the learned Sessions Judge in Annexure A2. It is discernible from the records that, the prosecution case is mainly based on the evidence of PW7 and PW8. PW7 is the injured in this case. It is seen from the records that, he has deposed about the incident and also referred to the accused persons. PW8 is the wife PW7, and she also referred to some of the accused persons including the petitioner herein. It is discernible that she could identify only the 1[st] accused from the dock. After analyzing the evidence of PW7 and PW8, the learned Sessions Judge observed that there are certain glaring discrepancies in their evidence, particularly as to the time of the incident and also with respect to the place of occurrence. Apart from the above, after carefully scrutinizing the ``` CRL.MC NO. 2502 OF 2020 ``` ``` 6 ``` evidence of the aforesaid witnesses it was found by the learned Sessions Judge that their evidence cannot be relied upon for the purpose of conviction. 8. In addition to that, the learned Sessions Judge specifically found that there was a delay of 11 days in registering the First Information Report and no proper explanation was offered by PW7 or the prosecution for the same. This was also taken as one of the main grounds for disbelieving the evidence of PW7 and PW8. Thus, on analyzing the material evidence, it is clear that, a categorical finding has been entered by the Sessions Court that the prosecution failed to establish the case beyond reasonable doubts. Even though the order of acquittal was passed in respect of other accused persons, on examining the reasons which prompted the Sessions Court to arrive at the said conclusion, it can be seen that the same specifically refers to the failure on the part of prosecution in establishing the case against all the accused persons. In such circumstances, it can be safely ``` CRL.MC NO. 2502 OF 2020 ``` ``` 7 ``` concluded that, on account of the observations and findings of the learned Sessions Judge in Annexure A2 Judgment, the substratum of the case is lost. In such circumstances, I find that this is a fit case in which powers of this Court under Section 482 of Cr.P.C. can be invoked by applying the principles laid down by the Full Bench of this Court in **Moosa v. Sub Inspector of Police** [2006(1) KLT 552]. In the result, this Crl.M.C. is allowed. 9. However, as pointed out by the learned Public Prosecutor, and also in the light of the observations made by the Full Bench of this Court in **Moosa’s** case, no interference can be made in respect of the prosecution against the 2[nd] petitioner at this stage. This is particularly because in **Moosa’s** case it was specifically observed that, in respect of a person who is evading process of law no interference need to be made under Section 482 of Cr.P.C. In such circumstances, I am not inclined to exercise the jurisdiction in respect of the prosecution against the 2[nd] petitioner in these proceedings. However, it is made clear that ``` 8 ``` ## **`CRL.MC NO. 2502 OF 2020`** this shall not preclude the 2[nd] petitioner from approaching this Court again, once he surrenders before the court and subject himself to the process of law. In the result, this CrlM.C. is allowed and all further proceedings in S.C. No.141/2021 pending before the Additional Sessions Court, Ottappalam which arises from Crime No.195/2013 of Pattambi Police Station as against the 1[st] petitioner/ 4[th] accused in the aforesaid crime are hereby quashed. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` SCS ``` CRL.MC NO. 2502 OF 2020 ``` ``` 9 ``` ## **`APPENDIX OF CRL.MC 2502/2020`** ``` PETITIONER ANNEXURES ANNEXURE-A1CERTIFIED COPY OF THE FINAL REPORT/CHARGE SHEET IN CRIME NO.195/2013, PATTAMBI POLICE STATION ANNEXURE A2CERTIFIED COPY OF THE JUDGMENT DATED 6/9/2019 IN S.C N.659/2015, ADDITIONAL SESSIONS COURT, OTTAPPALAM ```