SUDHEER v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **THURSDAY, THE 28TH DAY OF AUGUST 2014/6TH BHADRA, 1936** ## **Crl.MC.No. 4148 of 2014** **---------------------------------** **AGAINST THE JUDGMENT IN SC 883/2013 OF 1ST ADDITIONAL ASSISTANT SESSIONS COURT, THRISSUR AGAINST THE JUDGMENT IN SC 304/2002 OF 1ST ADDITIONAL ASSISTANT SESSIONS COUERT,THRISSUR CRIME NO. 137/1997 OF KUNNAMKULAM POLICE STATION , TRISSUR** **---------------** **PETITIONER(S)/24TH ACCUSED:** **---------------------------------------------** **SUDHEER, S/O.K.SUDHAKARAN, KANDIKKANI, CHOWANNUR VILLAGE, VELLITHIRUTHI DESOM, THRISSUR DISTRICT.** **BY ADV. SRI.T.PRASAD** **RESPONDENT(S)/COMPLAINANT:** **-----------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, WADAKKANCHERY POLICE STATION, THRISSUR DISTRICT THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.S.HYMA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** ## **Crl.MC.No. 4148 of 2014** ## **---------------------------------** ## **APPENDIX** ## **PETITIONERS' ANNEXURES** **------------------------------------------** **ANNEXURE I: THE TRUE COPY OF THE FIR AND FIS IN CRIME NO.137/1997 OF KUNNAMKULAM POLICE STATION IN THRISSUR DISTRICT.** **ANNEXURE II: THE TRUE COPY OF THE FINAL REPORT IN CRIME NO.137/97 OF KUNNAMKULAM POLICE STATION IN THRISSUR DISTRICT.** **ANNEXURE III: THE TRUE COPY OF THE JUDGMENT DATED 12/4/13 IN SC.304/2002 OF THE 1ST ADDITIONAL ASSISTANT SESSIONS COURT, THRISSUR.** ## **RESPONDENTS' ANNEXURE** **----------------------------------------** **NIL.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.M.C.No.4148 of 2014 .................................................. Dated this the 28[th] day of August, 2014. ## **O R D E R** The petitioner, who was arrayed as the 24[th] accused in Crime No.137/1997 of Kunnamkulam Police Station, has filed this Criminal Miscellaneous Case to quash the proceedings under Section 482 of Code of Criminal Procedure. 2. It is alleged in the petition that the petitioner has been arrayed as the 24[th] accused in Crime No.137/1997 of Kunnamkulam police station, which was suo motu registered by PW1 in respect of an incident happened on 15.4.1997 at about 7 p.m. 3. The case of the prosecution was that the accused persons formed themselves into an unlawful assembly in prosecution of their common object to attack and restrain the police officials in effecting arrest of the accused in Crime No.135/1997 of Kunnamkulam police station, being aware of the members of the unlawful assembly and knowing common object of the assembly wrongfully confined the police officials, inflicted injuries on them and caused damage to their dress and prevented them from discharging their duties and attempted Crl.M.C.No.4148 of 2014 2 to commit murder of PW1 and other police officials and thereby all of them have committed the offences punishable under Sections 143, 147, 148, 341, 342, 323, 324, 332, 307 and 427 read with Section 149 of the Indian Penal Code (wrongfully shown as Section 34 of IPC in the petition). After investigation, final report was filed and it was taken on file as C.P.No.28/2000 on the file of the Judicial First Class Magistrate Court, Kunnamkulam and thereafter the case against the petitioner was split up as he could not appear as he went abroad and case against other accused was committed to Sessions Court and after committal of the other accused persons, the learned Sessions Judge has taken cognizance of the case as S.C.No.304/2002 and it was made over to the First Additional Assistant Sessions Court for disposal. After trial, they were acquitted by the learned Additional Assistant Sessions Judge as per Annexure-III judgment disbelieving the case of the prosecution regarding the incident itself. Thereafter the petitioner surrendered before the Magistrate court and the case against him was refiled and then committed to the Sessions Court and it was taken on file as S.C.No.883/2013 and made over to the First Additional Assistant Sessions Court for Crl.M.C.No.4148 of 2014 3 disposal and it is pending before that court. In view of the fact that other accused persons have been acquitted after trial and the case of the prosecution was disbelieved by the learned Additional Assistant Sessions Judge, no purpose will be served by proceeding with the case against the petitioner as it will only amount to wastage of judicial time. So the petitioner has no other remedy except to approach this Court seeking the following relief: For the above reasons and other valid grounds that are to be urged at the time of hearing it is most humbly prayed in the interest of justice that this Hon'ble Court may be pleased to quash Annexure-I and II FIR and final Report in Crime No.137/1997 of Kunnamkulam Police Station in Thrissur District pending as S.C.No.883/2013 on the file of the 1[st] Additional Assistant Sessions Court, Thrissur as against the petitioner. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor appearing for the respondent. 5. Since it is a suo motu registered case, there will not be any defacto complainant as such, as the police officials, who are discharging their duties, were the defacto complainant and the injured and their interest will be protected by the learned Crl.M.C.No.4148 of 2014 4 Public Prosecutor. The learned Public Prosecutor has filed a statement stating that the petitioner is a habitual offender and his name also involved in Kunnamkulam police rowdy list prepared on 8.10.1999. So according to the Public Prosecutor, it is not a case to be quashed at this stage. The learned Public Prosecutor submitted that there was no appeal filed against Annexure-III judgment and it has become final. 6. The learned counsel for the petitioner submitted that no purpose will be served by allowing the case to be proceeded with on the basis of the finding arrived at by the court below while acquitting other accused persons and it will only amount to wastage of judicial time and there is no possibility of identification of this accused as well. 7. It is an admitted fact that on 15.4.1997 at about 7 p.m, there was some incident occurred, in which PWs 1 to 3 in Crime No.137/1997 of Kunnamkulam police station were attacked by a mob and they sustained some injuries and on the bass of the statement given by the Sub Inspector of police, who sustained injuries, registered Crime No. 137/1997 against 14 named persons and other 36 identifiable persons. The name of the petitioner was not included in the First Information Crl.M.C.No.4148 of 2014 5 Statement. After investigation, Annexure-II Final Report was filed, in which 41 accused persons have been arrayed, which includes the present petitioner, where he was arrayed as the 24[th] accused. It is also an admitted fact that except the present petitioner, others appeared and case against them was committed to the Sessions Court where it was taken on file as S.C.No.304/2002 and it was made over to the First Additional Assistant Sessions Court and after trial, as per Annexure-III judgment acquitted those accused persons. Thereafter, the present petitioner surrendered before the Judicial First Class Magistrate Court and his case was again committed and taken on file as SC.No.883/2013 by the Sessions Court and it was made over to the First Additional Assistant Sessions Court, Thrissur for disposal and it is pending before that court. Now the petitioner wants to get the benefit of acquittal of other accused persons for quashing the proceedings. 8. In the decision reported in **Moosa v. Sub Inspector of Police** (2006 (1)KLT 552), A full Bench of this Court has held that normally acquittal of co-accused will not be a ground for acquitting the case against the accused, who did not face trial. But in the same decision, it has been observed that, if the Crl.M.C.No.4148 of 2014 6 substratum of the prosecution case has been shattered in the earlier case and on that basis proceeding with the case against the accused, who did not face trial will be only a futile attempt and will amount to wastage of judicial time, then this Court can invoke the power under Section 482 of the Code to quash the proceedings giving the benefit of acquittal of other accused persons. Keeping in mind the principle laid down in that decision, the case in hand has to be considered. 9. It is seen from Annexure-III judgment that PWs 1 to 3 were attacked by a mob consisting of 15 persons. PWs 1 to 3 have identified even in that case only accused 1 and 15. Even that identification was not believed by the learned Additional Assistant Sessions Judge while disposing the case. The other persons who have been examined as PWs 4 to 7 and 10 to 12 as eye witnesses did not support the case of the prosecution and they turned hostile to the prosecution. The learned Additional Assistant Sessions Judge also came to a conclusion with the possibility of the police official going to that place and the incident occurred as alleged by them itself is doubtful and not probable. It was on that basis all the accused who faced trial except the present petitioner were acquitted by Crl.M.C.No.4148 of 2014 7 the Additional Assistant Sessions Judge. Admittedly the name of the present petitioner was not mentioned in the First Information Statement. He has been subsequently implicated. If that be the case, there is no possibility of identification of the accused even at the time when he was implicated in the case as it is revealed from the judgment by which all the other accused persons were acquitted that no test identification parade has been conducted so as to identify the other unnamed accused persons mentioned in the FIR at the time of filing of the final report. So under the circumstances, it can be safely concluded that the prosecution case has been completely shattered and become unbelievable as per the finding of the learned Additional Assistant Sessions Judge in SC.No.304/2002. If that be the case, there will be no purpose in allowing the case to be continued as it will be only wastage of judicial time and the possibility of identifying the petitioner as one of the accused, who involved in the crime, whose name has not been mentioned in the First Information Report without proper material will be only a wastage of judicial time and the benefit of acquittal of the other accused persons who faced trial has to be given to the petitioner and the further proceedings as against Crl.M.C.No.4148 of 2014 8 him has to be quashed invoking the power under Section 482 of the Code. 9. So this petition is allowed and further proceedings in S.C.No.883/2013 (Crime No.137/1997 of Kunnamkulam police station) pending before the Additional Assistant Sessions Court, Thrissur as against the petitioner is quashed. Office is directed to communicate this order to the concerned court immediately. ## **Sd/-** ## **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge Crl.M.C.No.4148 of 2014 9