# `IN THE HIGH COURT OF KERALA AT ERNAKULAM`
## `PRESENT`
## `THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.`
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MONDAY, THE 21[ST] DAY OF NOVEMBER 2022 / 30TH KARTHIKA, 1944
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## `CRL.MC NO. 7622 OF 2022`
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[IN C.C.NO.346/2022 ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST
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CLASS-II, PALAKKAD]
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## `PETITIONER/20TH ACCUSED:`
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ZAKEER HUSSAIN
AGED 53 YEARS
S/O MUHAMMED GOUSE, "DARUL AYAAN" BHARATH NAGAR, EAST
VENNAKKARA, NARUNI P.O, PALAKKAD, PIN - 678004
BY ADV V.A.VINOD
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## `RESPONDENTS/STATE AND COMPLAINANT:`
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1STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
PIN - 682031
2DEPUTY SUPERINTENDENT OF POLICE
C.B. C.I.D, PALAKKAD, PIN – 678001
BY SRI.C.S.HRITHWIK, SR. PUBLIC PROSECUTOR
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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
21.11.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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## `O R D E R`
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The petitioner is the 20[th] accused in Crime
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No.485/1991 of Town North Police Station,
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Palakkad. Later, the investigation was transferred
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to C.B.C.I.D., Palakkad and the crime was
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re-numbered as Crime No.619/CR/91. The aforesaid
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crime was registered against the accused
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persons, including the petitioner for committing
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offences punishable under sections 143,147,148,
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151, 341, 152, 153, 153(A) r/w. Section 149 of the
Indian Penal Code (IPC).
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2.The prosecution case, in brief, is as
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follows:
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On 14.12.1991 at 16.00 hours, BJP/RSS workers
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have decided to convene a protest meeting at
Pezhumkara junction, and upon getting that
information, the accused persons belonging to
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CRL.MC No.7622 of 2022 3
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Muslim community, in furtherance of their common
object to disturb the meeting, conspired together
and hurled slogans capable of arousing communal
passion and attempted to attack people belonging
to Hindu community. When Dy.S.P., Palakkad ordered
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the mob to disperse, in defiance of that order,
they hurled stones towards the police party and
continued rioting. It is also alleged that the
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accused along with the other members of the mob,
intercepted the vehicles and pedestrians, thereby
created a panic situation. The crime was
registered in such circumstances and the
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petitioner was implicated as one of the accused
persons. After completing the investigation, the
final report was submitted by the Police before
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the Judicial First Class Magistrate Court-II,
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Palakkadandcognizancewastakenas
C.C.No.154/1994. In the trial that followed, the
25 accused persons participated and Annexure-3 is
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CRL.MC No.7622 of 2022 4
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the judgment passed in the said case, acquitting
all the accused who faced the trial. As some of
the accused persons, including the petitioner were
absconding, the case against them was split up.
Later, a further trial was conducted in respect of
some of the accused by the Judicial First Class
Magistrate Court-II, Palakkad, as C.C.No.299/1998
and the same was culminated in Annexure-4
judgment. The said trial also ended up in the
acquittal. At that time also, the petitioner was
absconding, and the case against him was included
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in the Long Pending Register as L.P.No.84/2004.
The petitioner was arrested later and the case
against the petitioner was re-filed. It is now
pending as C.C.No.346/2022 before the Judicial
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First Class Magistrate Court-II, Palakkad. This
Crl.M.C. is filed by the petitioner for quashing
all further proceedings as against him in the
light of the order of acquittal passed by the
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CRL.MC No.7622 of 2022 5
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learned Magistrate in respect of the other accused
as evidenced by Annexure-3 and Annexure-4
judgments.
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3.Heard Sri.V.A.Vinod, the learned counsel
for the petitioner and Sri.C.S.Hrithwik, the
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learned Senior Public Prosecutor for the State.
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4.The specific contention put forward by the
learned counsel for the petitioner is that
consequent to the finding of the acquittal passed
in respect of the other accused as per Annexures 3
and 4 judgments, the substratum of the prosecution
case is lost, and no fruitful purpose would be
served, even if the prosecution is continued
against the petitioner. Reliance was also placed
by relying upon the principles laid down by the
Full Bench of this Court in Moosa v. Sub Inspector
of Police[2006(1) KLT 552].
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5.On the other hand, the learned Public
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CRL.MC No.7622 of 2022 6
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Prosecutor would oppose the aforesaid contention.
It is pointed out that, the order of acquittal of
the other accused was passed after a full-fledged
trial. Merely because of the reason that the other
accused were acquitted, the petitioner cannot seek
for an order to quash the proceedings against him
by invoking the powers of this Court under Section
482 Cr.PC.
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6.I have carefully gone through the findings
entered by the learned Magistrate in Annexures 3
to 5 judgments. Annexure-3 would indicate that the
independent witnesses were examined as PWs.1 to 7
and all of them turned hostile to the prosecution.
PWs.8,9,10,11,12, and 13, who are the official
witnesses, were examined to prove the prosecution
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case. Among the said witnesses, PW8-Head Constable
and PW9-Sub Inspector of Police identified
the accused persons who faced the trial.
As far as the other official witnesses are
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concerned, even though they stated about the
incident, they could not identify any of the
accused persons. As regards PWs.8 and 9, the
learned Magistrate arrived at a categorical
conclusion that since both of them have no
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previous acquaintance with the accused persons,
the conviction based on their identification is
not at all safe. The order of acquittal was
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passed in such circumstances. Even though further
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trial took place in respect of some other accused
persons, it culminated in the Annexures-4 judgment
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passed in C.C.No.299/1998. In this case also,
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independent witnesses turned hostile to the
prosecution, and the accused persons were
acquitted accordingly. Another trial was conducted
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in respect of one of the accused as
C.C.No.537/2011, and it culminated in Annexure-5
judgment. In that trial, only two witnesses were
examined by the prosecution and no incriminating
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materials could be brought out by the prosecution.
Therefore, even the questioning of the accused
under section 313 Cr.PC was dispensed with.
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7.Thus, after considering all the relevant
aspects, I find some force in the contention put
forward by the learned counsel for the petitioner.
It is evident that on three occasions the trials
were conducted against some of the co-accused, and
those trials culminated in Annexures-3,4 and 5
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judgments. In all the said cases, independent
witnesses have turned hostile to the prosecution,
and the court categorically found that a
conviction cannot be made on the basis of the
evidence given by the official witnesses. In such
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circumstances, I am of the view that no fruitful
purpose would be served by allowing the
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prosecution to continue against the petitioner
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herein. A different outcome cannot be expected as
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regards the trial, if any, conducted against the
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petitioner as well. Therefore, the continuation of
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the proceedings against the petitioner would be a
futile exercise and would be a wastage of precious
judicial time.
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In such circumstances, I find that this is a
fit case in which the powers of this Court under
section 482 Cr.PC can be invoked by applying the
principles laid down by Moosa’s case (supra).
Accordingly, this Crl.M.C. is allowed, and all
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further proceedings as against the petitioner in
Crime No.619/CR/91 OF C.B.C.I.D, Palakkad and all
further proceedings in C.C.No.346/2022 pending on
the file of the Judicial First Class Magistrate
Court-II, Palakkad are hereby quashed.
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Sd/-
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ZIYAD RAHMAN A.A.
JUDGE
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pkk
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## `APPENDIX OF CRL.MC 7622/2022`
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PETITIONER’S ANNEXURES
Annexure1CERTIFIED COPY OF THE CHARGE SHEET IN CRIME
NO. 619/CR/91 OF C.B. C.I.D PALAKKAD
Annexure2CERTIFIED COPY OF THE REPORT FILED BY THE 2ND
RESPONDENT DATED 09.05.2022
Annexure3CERTIFIED COPY OF THE JUDGMENT DATED
08.02.1999 IN C.C NO 154/1994 OF JUDICIAL
FIRST CLASS MAGISTRATE COURT-II, PALAKKAD
Annexure4CERTIFIED COPY OF THE JUDGMENT DATED
29.06.2001 IN C.C NO 299/1998 OF JUDICIAL
FIRST CLASS MAGISTRATE COURT-II, PALAKKAD
Annexure5CERTIFIED COPY OF THE JUDGMENT DATED
30.03.2015 IN C.C NO 537/2011 OF JUDICIAL
FIRST CLASS MAGISTRATE COURT-II, PALAKKAD
```
