Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 22ND DAY OF DECEMBER 2023 / 1ST POUSHA, 1945 CRL.MC NO. 7558 OF 2016 CRIME NO.1249/2011 OF Vadakara Police Station, Kozhikode AGAINST THE ORDER/JUDGMENT CC 1364/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,VADAKARA PETITIONER/S: KAREEM AGED 35 YEARS S/O. SOOPPY, AGED 35 YEARS,CHAPPEKKIL HOUSE, KOTTAPPALLY,VADAKARA, KOZHIKODE DISTRICT. BY ADV SRI.M.MUHAMMED SHAFI RESPONDENT/S: 1 STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAMPIN-682031 2 BIJESH AGED 33 YEARS, S/O.KUNJIRAMAN,PURAKKUNNOTHU HOUSE, KOTTAPPALLY PO., VADAKARA. KOZHIKODE DISTRICT 673001 OTHER PRESENT: SRI RENJITH TR, PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22.12.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: -2-
P.V.KUNHIKRISHNAN, J.
====================================================== ============================================================= Dated this the 22nd day of December, 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. Petitioner is the accused in CC No.528 of 2023 on the file of the Judicial First Class Magistrate Court, Vadakara, arising from Crime No.1249 of 2011.
3. It is submitted that the co-accused were already acquitted as per Annexure A2 judgment.
4. Heard counsel for the petitioner and the Public Prosecutor.
The counsel for the petitioner submitted that the co-accused were already acquitted 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 -3- 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 judgement of acquittal of the co-accused that could be taken into account while considering the request to quash the proceedings. After going through the judgment of the trial court, I am of the considered opinion that the continuation of the prosecution against the petitioner/s will be an abuse of process of court. It will be beneficial to extract the relevant portion of the judgment by which the co-accused is acquitted:
“4. Point No.1: PW1 is the defacto complainant. He lodged Ext.P1 FI Statement. He deposed that he was not attacked by A1, 2 and 5 and they did not involve in the incident. PWs2 to 4, who were cites as eye witnesses to the incident deposed that they did not witness the incident. PWs1 to 4 did not support prosecution case. There is no -4-
evidence on record so as to connect the accused with the offences alleged against them. The prosecution could not prove its case against A1, 2 and 5. Hence I found A1, 2 and 5 not guilty of offences imputed against them.
5. Point No. 2: As I have already found A1, 2 and 5 not guilty of the offences alleged against them, this point does not arise for consideration. In the result, A1, 5 and 5 are acquitted under Section 248
(1) of Cr.P.C. Bail bonds executed by them are cancelled and they are set at their liberty.”
6. 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 co-accused. 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. Hence this Criminal Miscellaneous Case is allowed. All further proceedings against the petitioner in CC No.528 of 2023 on the file of the Judicial First Class Magistrate Court, Vadakara, arising from Crime No.1249 of 2011 are quashed. Sd/- P.V.KUNHIKRISHNAN JUDGE das -5- APPENDIX OF CRL.MC 7558/2016 PETITIONER ANNEXURES ANNEXURE A1: CETIFICEDE COPY OF THE FINAL REPORT IN CRIME NO.1249/2011 OF VADAKARA POLICE STATION, KOZHIKODE ANNEXUREA A2: CERTIFIED COPYOF THE JUDGMENT IN CC NO.222 OF 2012DT. 10.10.2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT VADAKARA.