THAKIDIYAL KUNHUMON @ JOSEPH v. THE STATE OF KERALA AND OTHERS

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.K. Mohanan
Judgment Date: 2008-06-13
Court Decision / Holding: Annexure-A charge and C.C.No.64/2005 and all proceedings thereon pending against the petitioner are quashed; CrMC is allowed.
Final Disposition: Quashed; CrMC allowed; Annexure-A charge and C.C.64/2005 quashed and all proceedings closed.

Parties to the Case

Appellants / Petitioners

THAKIDIYAL KUNHUMON @ JOSEPH

Respondents

The State of Kerala (represented by Public Prosecutor)
Sony, Driver, KL-13 G-7626 Bus
Suresh, Cleaner, KL-13 G-7626 Bus
Sony Thomas, Conductor, KL-13-G-7626 Bus

Legal Representation & Advocates

Counsels for Petitioners

• Promy Kaprakkatt (Adv.)
• K.N. Abhilash

Counsels for Respondents

• Public Prosecutor (Sri C.M. Kammappu)

Case Synopsis & Summary

This is a Kerala High Court criminal miscellaneous petition challenging Annexure-A Final Report and the split-up case C.C.64/2005 arising from a 2-10-2002 incident in which five accused allegedly obstructed a KSRTC bus and caused hurt to PW 1–3. The Ist accused in C.C. No.308/2003 on the file of the Judicial First Class Magistrate, Talipparamba, seeks to quash the charge sheet and all proceedings. The trial court had, after trial, acquitted all accused except the petitioner due to non‑attendance; the case was split and refiled as C.C.64/2005. The petitioner contends continuing proceedings would be an abuse of process since the matter has been settled (Annexure-B) and the prosecution witnesses did not identify the accused; PW-4 alone did not witness the incident. The Public Prosecutor counters by invoking Moosa v. Sub Inspector of Police (Full Bench, 2006 (1) KLT 552), arguing the prayer cannot be allowed and the petitioner must face trial. The High Court distinguishes the Full Bench decision on the facts—note of settlement, lack of identification, and absence of fruitful prosecution—and ultimately agrees that continuing the prosecution would amount to abuse. Consequently, Annexure-A charge and C.C.64/2005 and all related proceedings are quashed and the criminal miscellaneous petition is allowed.

Provisions of Law Cited

Section 143 IPCSection 147 IPCSection 148 IPCSection 323 IPCSection 324 IPC read with Section 149 IPC

Legal Doctrines & Maxims

Abuse of process of the court
Fruitful prosecution / no likelihood of fruitful prosecution
Settlement between parties as a factor in disposal of proceedings

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner’s counsel submitted that Annexure-A and the split‑up charge C.C.64/2005 should be quashed because the trial with respect to the other accused had ended in acquittals on the ground of non‑identification, and Annexure‑B shows the case has been settled with the PW witnesses not supporting the prosecution; PW-4 did not witness the incident, and the absence of reliable identification, coupled with the long delay, renders continued proceedings an abuse of process. The defense relied on Annexure-B and argued that continuing would not yield fruitful prosecution and would re‑traumatize the petitioner.

Contentions of Respondents

The Public Prosecutor urged adherence to the decision in Moosa v. Sub Inspector of Police (Full Bench, 2006 (1) KLT 552), arguing that the prayer for quashing cannot be allowed and the petitioner must face trial. He contended that the facts do not warrant quashing and that the legal principle cited by the defense fails on the law’s application to facts.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Moosa v. Sub Inspector of Police	2006 (1) KLT 552 (FB)	Distinguished	Cited by the Public Prosecutor as a controlling ratio, but the High Court distinguishes this Full Bench decision on the facts (settlement, lack of witness identification) and proceeds to quash the proceedings on the basis of abuse of process.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 13TH JUNE 2008 / 23RD JYAISHTA 1930 Crl.MC.No. 4389 of 2005() ------------------------CC.308/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TALIPARAMBA .................... PETITIONER: ----------------- THAKIDIYAL KUNHUMON @ JOSEPH, AGED 35 YEARS, PADAPPENGAD, KOOVERI AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT. BY ADV. SRI.PROMY KAPRAKKATT SRI.K.N.ABHILASH RESPONDENTS: ------------- 1. THE STATE OF KERALA, REP. PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SONY, DRIVER, KL-13 G-7626 BUS, ALAKODE, THALIPARAMBA TALUK, KANNUR. 3. SURESH, CLEANER, KL-13 G-7626 BUS, ALAKODE, THALIPARAMBA TALUK, KANNUR. 4. SONY THOMAS, S/O.THOMAS, CONDUCTOR, KL-13-G-7626 BUS, ALAKODE, TALIPARAMBA TALUK, KANNUR DISTRICT. R1 BY PUBLIC PROSECUTOR SRI C.M. KAMMAPPU. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.A.NO.15765/2005 IN CRL.M.C.NO.4389 OF 2005 ## DISMISSED. 13-6-2008. SD/- V.K.MOHANAN, JUDGE. //TRUE COPY// ## **V.K.MOHANAN, J.** ---------------------------------------------CRL.M.C. No.4389 of 2005 ---------------------------------------------Dated, 13[th] June, 2008. ## ORDER The Ist accused in C.C.No.308/2003 on the file of the Judicial First Class Magistrate, Thaliparamba is the petitioner herein who seeks an order to quash Annexure-A charge sheet and C.C.No.64/2005 (split up from C.C.308/2003) instituted thereon and all proceedings pending before the court below. In the above case, the allegation is that the accused and other four persons caused obstruction to the bus bearing Regn.No.KL-13-G-7626 and entered into the bus and voluntarily caused hurt to P.Ws.1 to 3 with wooden stick, iron rod and also with their hands. Crime No.239/2002 was registered in the Alakode Police Station. The incident was on 2.10.2002 at about 7.15 a.m. After completing investigation in the above crime, police had filed final report for the offences punishable under sections 143, 147,148, 323 and 324 read with section 149 of IPC. Annexure A is the Final Report. On the basis of the above report, the CRMC 4389/05 ## **-:2:-** court below took cognizance and instituted C.C.No.308/2003 against accused Nos. 1 to 5. After the trial of the above case, the trial court by its judgment dated 9-2-2005, acquitted all the accused who faced trial, except the petitioner as he did not stand for the trial. Judgment of the trial court is produced along with this petition as Anneuxre-B. According to the petitioner, he could not attend the trial as he was in Bombay in connection with his job. After acquitting the other accused, the case against the petitioner was split up and refiled as C.C.No.64/2005. It is the above case being sought to be quashed in this proceedings. 2. I have heard the counsel for the petitioner as well as the learned Public Prosecutor. 3. The learned Public Prosecutor submitted that in the light of the decision of the Full Bench of this Court in **Moosa v. Sub Inspector of Police** (2006 (1) KLT 552) (F.B), the prayer of the petitioner cannot be allowed and the petitioner has to face the trial. On the other hand, the learned counsel for the petitioner submitted that the above CRMC 4389/05 ## **-:3:-** decision is not applicable in the facts and circumstances involved in this case. Inviting my attention to Anneuxre B judgment, the counsel submitted that PWs 1 to 3, when they were examined in the court during trial of the case in earlier occasions deposed that they were not able to identify the accused persons and also stated that they do not know whether the accused persons who faced the trial were present at the time of the incident. It is also discernible from the judgment that the matter has been settled and the prosecution witnesses have no complaint against the accused. The only independent witness - PW-4, deposed before the Court that he did not witness the incident connected with the case. The trial court also found that nothing was brought out in evidence in support of the prosecution to prove the identity of the assailants involved in the incident. So on the basis of the above factual situation and finding, the court below acquitted the other accused. 4. I have perused the documents available on record, especially, Annexure B judgment. The above crime was CRMC 4389/05 ## **-:4:-** registered for the offences punishable under sections 143, 147, 148, 323 and 324 read with section 149 of IPC. According to the charge and the judgment, the alleged incident took place at about 7.15 a.m. on 2-10-2002. Now, six years are over after the incident. The accused who faced the trial have been acquitted of the offences. Since all the accused were acquitted, the offence against the petitioner under sections 143, 147, 148 and 323 read with section 149 will not lie. As the matter has already been settled as borne out from Annexure B judgment, and that the witnesses were not able to identify the assailants who involved in the incident, there is no meaning in relegating the petitioner to appear before the trial court and to undergo the ordeal of trial. In the light of the particular facts and circumstances involved in this case, even if the proceedings against the petitioner is allowed to continue, there is no likelihood of a fruitful prosecution and hence, the same will amount to abuse of the process of the court. In the result, Annexure-A charge and C.C.No.64/2005 CRMC 4389/05 ## **-:5:-** and all proceedings thereon pending against the petitioner before the Judicial First Class Magistrate, Taliparamba, is quashed. Crl.M.C. is allowed. **V.K.MOHANAN, JUDGE** kvm/- CRMC 4389/05 ## **-:6:-** V.K.MOHANAN, J. No.... Judgment/Order Dated: