SUNEER v. STATE OF KERALA

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN` ``` FRIDAY, THE 13[TH] DAY OF OCTOBER 2023 / 21ST ASWINA, 1945 ``` ## `CRL.MC NO. 1178 OF 2022` ``` IN LP 71OF 2020 ON THE FILES OF SC 920/2017 OF ADDITIONAL DISTRICT COURT ``` ``` & SESSIONS COURT - II, MANJERI / II ADDITIONAL MACT, MANJERI ``` ## `PETITIONER/5TH ACCUSED:` ``` SUNEER AGED 27 YEARS PERAKAMANNA, MALAPPURAM DISTRICT MALAPPURAM, PIN - 676541 BY ADV U.K.DEVIDAS ``` ## `RESPONDENT/COMPLAINANT:` ``` STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 RENJITH TR, PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON ``` ``` 13.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` Crl.M.C. No.1178 of 2022 ``` ``` 2 ``` ## **P. V. KUNHIKRISHNAN, J. ---------------------------------Crl.M.C. No.1178 of 2022** ## **---------------------------------Dated this the 13[th] day of October, 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. The petitioner is one of the accused in Sessions case No.920/2017 on the file of 2[nd] Additional Sessions Judge, Manjeri, which is now pending as L.P. No.71/2022 before the same Court. 3. It is submitted that other accused were already acquitted as per Annexure-7 judgment. In the light of the Annexure-7 judgment, the continuation of the prosecution against the petitioner is an abuse of process of Court is the submission. 4. Heard counsel for the petitioner and the Public Prosecutor. The counsel for the petitioner submitted that the co-accused were already acquitted ``` Crl.M.C. No.1178 of 2022 ``` ``` 3 ``` 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 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 ``` Crl.M.C. No.1178 of 2022 ``` ``` 4 ``` 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-7 judgment by which the coaccused is acquitted: “10. PW1 is the injured Defacto Complainant whom the Accused alleged to have attempted to commit culpable homicide not amounting to murder, the incident alleged in this case. When examine before Court, even though he gave evidence that on one day on 2014 a group of people attacked and caused hurt to him in the compound of the PMR Crusher at Othai and in that he gave Ext. P1 F.I. Statement to the Police, he turned hostile and stated that the Accused herein are not the persons who had thus attacked and caused hurt to him. He further gave evidence that the mater is settled between parties out of Court and that he has no grievance against the Accused herein. 11. PW3, is one of the other injured in the alleged incident in this case. Eventhough he stated that he had sustained injuries and he had taken treatment for the same, he turned hostile and stated that he had not sustained any injuries in the incident alleged in this case. He further stated ``` Crl.M.C. No.1178 of 2022 ``` ``` 5 ``` that the Accused herein have not committed any offence against him. Then he gave evidence that matter is settled between parties out of Court and that he has no grievance against the Accused herein. As already stated above CW3, CW4 the other 2 persons alleged to have sustained injuries in the alleged incident in this case, belong to West Bangal and they are not examined before Court as inspite of issuance of repeated coercive steps, the prosecution was not able to secure their presence and reported that their present whereabouts is not known. 12. PW5 is the Director of PMR Crusher, Chathalloor where the Accused are alleged to have criminally trespassed and committed mischief in the incident alleged in this case. Eventhough he gave evidence that a group of people had criminally trespassed and committed mischief in his PMR Crusher Unit, he also turned hostile and stated that he does not know the persons who had thus criminally trespassed and committed mischief in his above PMR Crusher Unit. He further gave evidence that the that matter is settled between parties out of Court and that he has no grievance against the Accused herein. 13. PW2 and PW 4 who are examined as eye witnesses to the incident alleged in this case, also turned hostile and stated that hey have not seen the alleged incident in this case. PW6 and PW 7 are witnesses in Ext P2 Scene Mahazar. ``` Crl.M.C. No.1178 of 2022 ``` ``` 6 ``` 14. Thus, eventhough from the evidence of PW 1 and PW5 it stands proved that a group of people had criminally trespassed into the compound of PMR Granite, Chathaloor and caused hurt to PW 1 and committed mischief by dismantling the equipments therein, there is no reliable evidence to connect the Accused herein with the alleged offence. In the absence of reliable evidence benefit of doubt is to be given in favour of the Accused. Hence benefit of doubt is given in favour of the Accused and Point Nos 1 to 6 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 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. Therefore, this Crl.M.C can be allowed. Therefore, this Criminal Miscellaneous Case is allowed. All further proceedings in L.P. No.71/2020 in Sessions case No.920/2017 on the file of 2[nd] Additional Sessions Judge, Manjeri arising from Crime ``` Crl.M.C. No.1178 of 2022 ``` ``` 7 ``` No.536/2014 of Areekode Police Station, Malappuram are quashed. **Sd/-** **P. V. KUNHIKRISHNAN** # **JUDGE** SKP/16-10 ``` Crl.M.C. No.1178 of 2022 ``` ``` 8 ``` ## `APPENDIX OF CRL.MC 1178/2022` |`PETITIONER’S`|`ANNEXURES:`| |---|---| |`ANNEXURE1`|`TRUE COPY OF THE RELEVANT PAGE OF CHARGE SHEET`| ||`IN CRIME NO. 536 OF 2014 OF AREEKODE POLICE`| ||`STATION DATED 13.05.2015`| |`ANNEXURE2`|`CERTIFIED COPY OF THE DEPOSITION OF THE PW1 IN`| ||`S.C. NO.920 OF 2017DATED 17.02.2021`| |`ANNEXURE3`|`CERTIFIED COPY OF THE DEPOSITION OF THE PW2 IN`| ||`S.C. NO.920 OF 2017 DATED 17.02.2021`| |`ANNEXURE4`|`CERTIFIED COPY OF THE DEPOSITION OF THE PW3 IN`| ||`S.C. NO.920 OF 2017 DATED 18.02 .2021`| |`ANNEXURE5`|`CERTIFIED COPY OF THE DEPOSITION OF THE PW4 IN`| ||`S.C. NO.920 OF 2017 DATED 18.02 .2021`| |`ANNEXURE6`|`CERTIFIED COPY OF THE DEPOSITION OF THE PW 5 IN`| ||`S.C. NO.920 OF 2017 DATED 18.02 .2021`| |`ANNEXURE7`|`CERTIFIED COPY OF THE JUDGMENT DATED 09.03.2021`| ||`IN S.C. NO.920/2017ON THE FILES OF THE`| ||`ADDITIONAL SESSIONS COURT -II, MANJERI`| |`ANNEXURE8`|`TRUE COPY OF THE PROCEEDINGS DATED 14.10.2020`| ||`AS SHOWN IN THE E-COURT OFFICIAL WEBSITE OF`| ||`DISTRICT COURT`| |`RESPONDENTS'`|`EXHIBITS:NIL`| ``` TRUE COPY ``` ``` P.A. TO JUDGE ```